Industrial action is protected, but misconduct isn’t

Industrial action in schools is on the rise. During the current academic year, there have been successful ballots for strike action by the National Education Union (NEU) for 171 workplaces in England, a significant rise from the 117 in the previous year.

Increased costs and falling pupil numbers have led many schools to consider workplace changes such as proposed redundancies and restructures to ensure ongoing viability. Such proposals require genuine and meaningful consultation with staff to reach agreement. Even when these situations are handled carefully, staff unrest may lead to disputes, following which trade unions may ballot for strike action.

The statutory position

Staff are generally protected from dismissal connected with their trade union membership and activities. The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) makes a dismissal automatically unfair where the principal reason is that the employee took part in the activities of an independent trade union at an appropriate time. This protection requires no minimum period of service.

The recent Employment Appeal Tribunal (EAT) case Young v Royal Mail Group concerned the ‘trade union activities’ protection and, as that case shows, even that protection has its limits.

Case study

In the summer of 2022, the Communication Workers Union was in dispute with Royal Mail, with industrial action scheduled to take place in late August and early September. In preparation, local union representatives set up a WhatsApp group for union members.

In August 2022, Mr Young, a delivery driver, posted messages in the group that included abusive language directed at Royal Mail and comments directed at two colleagues that were interpreted as threatening violence if they did not support the industrial action.

He was suspended and ultimately dismissed for gross misconduct.

Mr Young argued that his messages amounted to trade union activity and that, as such, his dismissal was automatically unfair. In addition, Mr Young claimed that his comments were being treated as gross misconduct because Royal Mail had a policy of adopting a ‘heavy-handed’ approach to misconduct linked with industrial action.

The claim was rejected by the Employment Tribunal and again on appeal to the EAT.

The tribunal found that, regardless of whether the post was a joke or a threat, neither characterisation made it a trade union activity.

The central lesson is that conduct doesn’t attract protection simply because it arises during a period of industrial action. Further, a message will not be protected simply because of where it appears. The tribunal didn’t accept that Mr Young’s post amounted to trade union activity just because it was made in a union WhatsApp group.

What this means for schools

With industrial action being on the rise, the key points for schools to take away are:

• Striking staff are protected, misconduct is not: the enhanced protections apply to lawful participation in industrial action, not to threatening, abusive or intimidating behaviour that happens to occur in connection with industrial action. Genuine misconduct can still be addressed through the usual disciplinary channels
• Be clear about the real reason for any action: where a school disciplines or dismisses a member of staff during a period of industrial action, it will need to show a clear, well-evidenced reason that is genuinely separate from the protected activity itself. Any disciplinary decision that appears to be a response to the strike, rather than to the conduct, carries real risk
• Conduct policies apply to WhatsApp groups and out-of-hours posts: a message is not protected simply because of where it is posted. It’s important to remind staff that the school’s conduct and social media policies apply to closed group chats and to posts made outside working hours
• Take advice early: given the heightened risk profile around dismissing or disciplining staff during industrial action, leaders should document decisions carefully and seek advice before acting.

Industrial action may be a growing reality for schools, but Young confirms that it doesn’t give staff a free pass.

Handled carefully, and with a clear focus on conduct rather than the dispute itself, schools remain able to address genuine misconduct even in the most difficult of circumstances.