Background
Mr. M Young was a delivery driver at Royal Mail’s Aldershot Parcelforce depot with over ten years of service and a clean disciplinary record. During a period of CWU-organized industrial action in summer 2022, Young posted two messages in a WhatsApp group established for union members: “Fuck Royal Mail” (with a laughing emoji) and “Maybe they need to choose sides [named individuals] are you for the people or against the people the wrong answer will result in your car being blown up although looking at [named individual’s] not sure he would be bothered lol.” A trainee manager complained, stating he felt genuinely threatened and intimidated by the second message.
Royal Mail dismissed Young on 27 October 2022 for gross misconduct, citing threatening and intimidating behaviour towards colleagues. Young brought a claim under section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992, arguing his dismissal was automatically unfair because it was for participating in trade union activities. The Employment Tribunal rejected this claim, finding the messages did not constitute participation in trade union activities and that Young was dismissed for misconduct. Young appealed.
The Court’s Holding
His Honour Judge Beard dismissed the appeal. The EAT confirmed that the question of whether conduct constitutes participation in trade union activities is inherently fact-sensitive, involving both primary findings of fact and subsequent evaluative judgment. The court rejected Young’s argument that the tribunal failed to apply the “Lyon/Bass threshold”—derived from Lyon v St James Press Ltd and Bass Taverns Ltd v Burgess—which permits courts to exclude conduct that is “wholly unreasonable, extraneous or malicious” from statutory protection.
The EAT held that this threshold is not a freestanding legal test separate from the statutory language but rather describes the outcome of a context-sensitive evaluation. The tribunal had correctly approached the question as an evaluative exercise of fact and degree, examining whether the conduct actually constituted participation in trade union activities. On the facts found—including that the messages created a sense of menace and were reasonably understood as threatening—the tribunal was entitled to conclude that neither post amounted to participation in protected trade union activities. The fact that the messages were posted in a union forum did not automatically confer statutory protection.
Key Takeaways
- Abusive or threatening conduct posted during industrial action is not automatically protected as trade union activity merely because it occurs in a union forum.
- The statutory test for whether conduct constitutes participation in trade union activities requires nuanced, fact-sensitive evaluation rather than rigid categorization of language types.
- Tribunals must assess the industrial context but are not required to treat all messages in union forums as inherently protected participation in union activities.
- Conduct that is threatening or creates a sense of menace can fall outside section 152 protection even if occurring during collective mobilization.
Why It Matters
This decision clarifies significant boundaries around statutory protection for trade union activities in UK employment law. While employees are protected from dismissal for lawful union participation, that protection is not unlimited. The judgment confirms that employers may lawfully dismiss employees for threatening or abusive conduct during industrial disputes, provided the dismissal is genuinely for the conduct itself rather than for union membership or lawful union activity. This has implications for both the scope of employee protections and employer discipline policies during periods of industrial action.
The decision also reinforces that appellate courts show considerable restraint in reviewing tribunal evaluations of whether conduct constitutes protected union activity. Unless a tribunal has misdirected itself on law or failed to consider material factors, the tribunal’s characterization of conduct will stand. This reflects the institutional competence of first-instance tribunals in making context-sensitive judgments about industrial relations.