The claimant was dismissed for gross misconduct after posting two messages in a union WhatsApp group during an industrial dispute, one stating “Fuck Royal Mail” and the other suggesting named individuals should “choose sides” coupled with a reference to a car being blown up. The ET dismissed his claim that the dismissal was related to trade union activities, concluding the messages did not amount to participation in union activities; instead he had been dismissed for his conduct. At the EAT, the claimant argued the ET had failed properly to apply the case law principles concerning conduct occurring in the course of trade union activity, and had wrongly treated abusive or threatening language as incapable of falling within the scope of statutory protection.

HHJ Beard dismissed the appeal as the ET had approached the question correctly and the authorities did not impose a freestanding legal threshold separate from the statutory language. The Tribunal's conclusion was one it was entitled to reach on the facts found and disclosed no error of law.