M Young v Royal Mail Group Limited

Whether conduct amounts to participation in trade union activities under Trade Union and Labour Relations (Consolidation) Act 1992, section 152, is a fact-sensitive evaluative question. The Lyon and Bass references to wholly unreasonable or extraneous conduct do not create a freestanding legal threshold. Separability describes the result of the required evaluation rather than an additional legal test. An Employment Tribunal is entitled to conclude that abusive, threatening or joking references to violence are not trade union activities, even when posted in a union forum, provided it has directed itself correctly and considered the material facts. Appellate intervention requires an error of law or an identifiable flaw in reasoning, such as failure to consider a material matter, inconsistency or a gap in logic.

Mr Young, a CWU member employed by Royal Mail, was dismissed for gross misconduct after posting two messages in a union WhatsApp group during an industrial dispute. One message abused Royal Mail. The other urged named individuals to choose sides and referred to a car being blown up.

The Employment Tribunal found that the second message was reasonably understood as threatening and intimidating, and that the dismissal was for conduct rather than union membership or activities. It dismissed the claim under section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992. The appeal alleged misdirection, inadequate factual findings and an impermissibly rigid treatment of the messages as outside statutory protection.

1. Appeal dismissed. The Employment Tribunal correctly directed itself to section 152 and was entitled to conclude that neither message constituted participation in trade union activities.
2. The question whether conduct constitutes activities of an independent trade union involves primary findings of fact followed by a common-sense evaluative judgment of fact and degree. The statutory protection must be broad enough to protect legitimate union activity, but does not protect every act connected with a union or union forum.
3. The approach in Lyon, Bass and Morris does not establish a freestanding legal threshold based on conduct being wholly unreasonable, extraneous or malicious. That language is a gloss on the statutory question. Separability is a way of describing the outcome of the fact-sensitive evaluation, not an independent legal test.
4. The guidance in Kong applies equally to this statutory characterisation exercise. The evaluative judgment belongs to the Employment Tribunal and should not be remade on appeal merely because another conclusion might be available.
5. Appellate intervention may nevertheless be justified where there is a material error of law or an identifiable reasoning flaw, including failure to take account of a material matter, inconsistency or a gap in logic. The restraint described in Re Sprintroom Ltd is substantial, although the review is not expressed solely in terms of perversity.
6. On the facts found, the Tribunal had grappled with the industrial context and had not treated the WhatsApp forum as determinative. Its conclusion that the messages were properly characterised as conduct separate from trade union activities was open to it. The appeal sought an impermissible substitution of evaluative judgment.

• Employment Appeal Tribunal: dismissed the appeal against the Employment Tribunal’s dismissal of the section 152 claim.
• Employment Tribunal: found that the dismissal was for misconduct rather than participation in trade union activities and dismissed the automatic unfair dismissal claim.