Unfair dismissal for trade union activity

The recent case of Benavides v Britannia Services Group Limitedaddressed the protections afforded to trade union members and how dismissals involving staff can be rendered automatically unfair if the principle reason is their trade union involvement.

The claimant in this case had worked for the employer as a cleaner since 2009 and was an active member of a trade union. She had previously been involved in various group grievances against the employer, which included disputes about holiday pay, uniforms and favouritism among management. In February 2016 the union wrote to the employer asking that London based staff, which included Benavides, receive a pay rise and threatening to take strike action if a resolution was not agreed by 11th March 2016.

As the two sides could not come to an agreement a protest took place outside of the employers Oxford Street Store on 12th March 2016. The claimant helped organise this protest of over 200 people as well as making several comments on social media criticising the employers’ treatment of her and encouraging people to boycott the store.

This demonstration led to the store being closed for 15 minutes and Benavides’ manager was keen to see her dismissed for her involvement. As such the claimant was later dismissed on the grounds of gross misconduct relating to her social media comments, which was in breach of the company’s social media policy.

Benavides proceeded to raise a claim with an employment tribunal (ET) for unfair dismissal citing section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992, which protects employees from being dismissed on the grounds of their union membership or activities. Having reviewed the evidence, the ET upheld the claim, outlining that it was not unusual or unreasonable for a trade union member in the claimant’s position to exert pressure in order to secure improvements in terms or conditions.

The ET found that the claimant’s online comments amounted to taking part in the activities of a trade union, which meant that she was sufficiently protected, despite breaching the company’s social media policy. The employer tried to argue that the claimant’s involvement in large scale public action was not covered by section 152 of the Act, however the ET disagreed with this point and concluded that no reasonable employer would have chosen to dismiss the claimant in this situation.

The result of this case goes to show the strength of the protections afforded to trade union members, as even though the claimant had breached the company’s social media policy and participated in action which led to a temporary closure of the business, she was still protected from dismissal for gross misconduct. Therefore, employers need to take extra care when disciplining union members to avoid claims of unfair dismissal. However, it should be noted that the respondent plans to appeal the decision and further test the protections afforded by section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992.

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