Labour & European Law Review Weekly Issue 386 10 August 2014
It is unlawful for an employer to dismiss an employee for taking part in the activities of a union at an appropriate time. In Mihaj v Sodexho Ltd, the Employment Appeal Tribunal (EAT) held that the “way” in which the activities were carried out was not relevant unless the claimant was acting in bad faith, dishonestly or for some other reason that took them outside the proper scope of trade union activities.
The RMT instructed Thompsons to act on behalf of Mr Mihaj.
Mr Mihaj, an RMT representative, worked for Sodexho Ltd from 31 January 2003 until his summary dismissal on 7 January 2014. The company said the reason for his dismissal concerned two incidents involving colleagues whom he was representing in disciplinary hearings.
The first involved an altercation between a member and a supervisor at Acton underground station, following which Mr Mihaj sent out a WhatsApp message to about 20 co-workers in support of the member. This allegedly upset the supervisor who complained about the message. Mr Mihaj was then accused of harassment by another member for allegedly putting pressure on him to a raise a grievance about his managers at Earl's Court underground station.
Mr Mihaj brought complaints of automatically unfair dismissal, alleging in addition to health and safety grounds that the reason for his dismissal was his trade union activities. He also applied for interim relief so that he could be temporarily reinstated pending the hearing.
The tribunal refused his application for interim relief on the basis that Mr Mihaj was “taking sides in a personal spat” rather than in activities related to union business.
Although it was not unusual for an enthusiastic union representative to get involved in a dispute or to urge a member to take action in pursuit of a particular concern, it was unusual for serious complaints of improper or oppressive conduct to materialise which appeared to have caused offence in one case and severe distress in the other.
It was not very “likely” therefore that the tribunal in the substantive hearing would find that the true reason for dismissal was trade union activity, as opposed to the way in which it was carried out.
The EAT upheld the appeal and set aside the tribunal judgment on the basis that the judge had failed to apply the correct approach as set out in Bass Taverns v Burgess. This made clear that the issue was whether a tribunal, on a full liability hearing, was likely to find that the claimant was dismissed for carrying out trade union activities.
Instead the tribunal had focused on the way in which the activities had been carried out. That was not relevant unless they were carried out “in bad faith, dishonestly or for some extraneous cause or in any other way such as to take those actions outside the proper scope of trade union activities”.
The EAT therefore remitted the case for an interim relief application to a differently constituted employment tribunal.
The interim relief application at the remitted hearing was also unsuccessful, although the tribunal at the full liability hearing held that the claimant had been unfairly dismissed by reason of trade union activities.