The Employment Appeal Tribunal (“EAT”) has recently considered the scope of protection afforded to employees participating in trade union activities in the recent decision of Young v Royal Mail Group Ltd. [2026] EAT 93. In particular, whether comments made in a union WhatsApp group during industrial action can amount to protected trade union activity for the purposes of section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”).
Facts
The Claimant was employed by Royal Mail as a delivery driver. In the summer of 2022, during a period of industrial action organised by the Communication Workers Union (“CWU”), the Claimant posted two messages in a CWU WhatsApp group, which said:
- “F*** Royal Mail”; and
- “maybe they need to choose sides [two named individuals] are you for the people or against the people the wrong answer will result in your car being blown up…”.
One of the individuals named in the second message complained via a formal written complaint on 23 August 2022, describing the comment as threatening and intimidating. Following a disciplinary investigation and process, the Claimant was dismissed for gross misconduct.
The Claimant brought a claim alleging that his dismissal was automatically unfair under section 152 TULRCA, arguing that the WhatsApp messages amounted to participation in trade union activities.
At first instance, the Employment Tribunal dismissed the claim, finding that the messages did not amount to trade union activities. The tribunal held the dismissal was for a fair reason, being the Claimant’s conduct, and the dismissal fell within the range of reasonable responses open to Royal Mail.
The Claimant appealed to the Employment Appeal Tribunal (“EAT”).
He argued that:
- The Tribunal applied the wrong legal test when deciding whether his WhatsApp messages were protected trade union activities and failed to properly consider the context of an ongoing industrial dispute.
- The Tribunal’s decision was flawed because it overlooked relevant factors, placed weight on irrelevant considerations, and failed to make clear findings about whether the “car being blown up” comment was a threat or a joke.
Decision
The EAT dismissed the appeal and upheld the Tribunal’s decision.
The central issue was whether the conduct leading to the Claimant’s dismissal could properly be characterised as participation in trade union activities for the purposes of section 152 TULRCA. Ultimately, the EAT held the Claimant’s conduct fell outside the scope of protected trade union activities, noting that:
- Whether conduct amounts to trade union activity is a fact-sensitive evaluative exercise involving questions of fact and degree;
- There is no separate legal threshold requiring a tribunal to determine whether conduct was “wholly unreasonable, extraneous or malicious” before deciding that it falls outside statutory protection. Those expressions are not a standalone legal test but merely descriptions that may assist when carrying out the broader evaluative exercise; and
- The Tribunal was entitled to take account of the impact of the comments on the recipient. The evidence showed the colleague named in the message felt threatened and intimidated, supporting the conclusion that the conduct was separable from any protected trade union activity.
The EAT held that the Tribunal had properly considered the content of the messages, the context in which they were sent, and their connection to the ongoing industrial dispute. The EAT rejected the Claimant’s argument that the Tribunal had failed to take account of the industrial context and the fact that the messages were posted in a union WhatsApp group, created as a forum for CWU members in anticipation of strike action. Whilst those factors were relevant, the forum in which a message is communicated does not determine its character. A message posted in a trade union WhatsApp group does not automatically amount to protected trade union activity; the content and nature of the conduct must be assessed objectively.
On the facts, the Tribunal was entitled to conclude the Claimant’s abusive language directed at Royal Mail and comments that could reasonably be interpreted as threatening violence towards colleagues were not activities undertaken in furtherance of trade union objectives. The EAT agreed that simply insulting an employer did not amount to legitimate trade union activity and that, whether the “car being blown up” comment was intended as a joke or a threat, it was not properly characterised as participation in trade union activities.
Key Takeaways
This decision provides useful guidance for schools and MATs dealing with trade union issues, particularly during periods of industrial action. The EAT has confirmed that not everything said or done in connection with a trade dispute will amount to protected trade union activity. The fact that conduct takes place in a union setting, such as a WhatsApp group for union members, does not automatically bring it within the protection of section 152 TULRCA. Tribunals will look closely at the nature and content of the conduct itself.
For schools and MATs, the case is a helpful reminder that employees remain subject to normal standards of behaviour during industrial action. In particular, the decision highlights the distinction between participation in lawful trade union activities (which is protected by the operation of TULRCA), and conduct which is abusive, intimidating or threatening, which occurs adjacent to industrial disputes.
The decision in the case also serves as a warning to staff and unions that a WhatsApp group is not a “free for all” to say and do whatever they like about the employer and colleagues, without consequence.
Schools and MATs should remember:
- Not all behaviour occurring within the context of an industrial dispute will attract statutory protection, and careful attention must be given to instances of misconduct which may justify disciplinary intervention;
- With the increasing use of WhatsApp groups, social media platforms and informal messaging channels by staff and trade union representatives, employers must routinely remind staff of professional standards, codes of conduct, anti-bullying policies and social media expectations, that apply equally to communications made online and outside working hours; and
- Consideration should be given to the impact of communications on colleagues. Even where an employee claims that a comment was intended as a joke, schools will be entitled to consider how the message was reasonably perceived by others. Where comments create feelings of intimidation, hostility or fear, they may justify disciplinary action, particularly in an educational environment where respectful conduct and staff wellbeing are paramount.
This case, although useful, does not mean that schools and MATs are free to discipline staff taking industrial action. Any such proposed course of action must be considered very carefully, and specialist advice should be taken before proceeding.
This briefing is not intended to be a definitive statement of the law and is correct at the time of publication. It should not be taken as a substitute for professional legal advice. It does not represent the views of Winckworth Sherwood or any of the authors.
If you require further advice or assistance with any HR or employment law issue in your school or MAT please contact our dedicated Schools HR team of expert employment lawyers on schoolshr@wslaw.co.uk or 0345 026 8690.