A Watson-Brown v Theatron Media T/a The Castle Cinema: 6006151/2024
JUDGMENT
The Claimant’s claim for automatic unfair dismissal is unfounded. The claim is dismissed. Approved by:REASONS
[1]The Respondent operates an independent cinema and employed the Claimant as a Duty Manager from 24 February 2023 until 5 March 2024. On 5 March 2024, the Respondent dismissed the Claimant on the grounds of alleged misconduct. At the time of dismissal, the Claimant had accrued 13 months of continuous service.The issues
[2]By an ET1 claim form presented on 19 July 2024, the Claimant brought a single claim: that he was automatically unfairly dismissed contrary to Case Number: 6006151/2024 2 section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992.[3]The sole issue for determination is whether the reason, or principal reason, for the Claimant’s dismissal was that he proposed to become a member of an independent trade union or to engage in trade union activities.Law
[4]The parties agreed that the burden was on the Claimant.[5]S152 Trade Union and Labour Relations (Consolidation) Act 1992 states:- Dismissal of employee on grounds related to union membership or activities. (1) For purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee— (a)was, or proposed to become, a member of an independent trade union, . . . (b)had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, . . . (ba)had made use, or proposed to make use, of trade union services at an appropriate time, (bb)had failed to accept an offer made in contravention of section 145A or 145B, or (c)was not a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, or had refused, or proposed to refuse, to become or remain a member.Evidence
[6]The Tribunal also had the benefit of an agreed hearing bundle containing 305 pages, a witness bundle of 22 pages, further disclosure from Slack (company intranet) of 2 pages, a previous employee handbook for 2023.[7]For the Claimant, I heard evidence from the Claimant and from Yann Allsopp, an Officer for BECTU. For the Respondent, I heard evidence from David Charman (Owner), Danielle Swift (Owner), and Corinne O’Sullivan (General Manager). Each witness provided a written statement, which the Tribunal read in advance. Oral evidence was then given on oath by each witness, and there were opportunities for cross-examination by the opposing party and for the Tribunal to ask questions. Case Number: 6006151/2024 3[8]The parties submitted written submissions and each made detailed oral submissions which I would not repeat here.[9]I took a full written note of the evidence and submissions. The hearing was audio recorded by the Tribunal and the audio recording stands as the official record of proceedings. I have considered all of the evidence and submissions in making my decision, however, I have only referred to matters that I consider material to the key findings that are required. The fact that I have not referred to evidence in this decision does not mean that I have not considered it.Findings of fact
[10]The Claimant’s case is that the Respondent was aware of his trade union activities, including, but not limited to, actual membership as, a member of a trade union; recruitment of union members; and his communications with, or criticisms directed at, the Respondent in relation to terms and conditions of employment. The Claimant contends that these activities were the principal reason for his dismissal, notwithstanding the Respondent’s stated reason of conduct as set out in the dismissal letter.[11]The Respondent denies any knowledge of the Claimant’s trade union activities prior to 5 March 2024, asserting that they were first disclosed by the Claimant in his appeal against the dismissal decision, which was issued on the same day.[12]The Claimant submitted into evidence a WhatsApp group chat (“the WAG”) comprising several current and former employees of the Respondent, covering a period from 13 May 2023 to 29 February 2024. A key feature of the WAG is its detailed discussion regarding joining the trade union BECTU, and pursuing collective bargaining with the Respondent to secure improved terms and conditions of employment. The Claimant was among the more vocal contributors and was, in fact, the author of most, if not all, of the group’s email communications with the Respondent concerning employment terms, although these communications were sent from an anonymous email address.[13]The Claimant contends that, at some point, the Respondent either received a copy of the WAG, was shown its contents, or was informed of its substance.[14]Although the Claimant does not possess direct or explicit evidence that the Respondent was aware of his trade union activities, he relies on a number of inferences and surrounding circumstances:a. Ms O’Sullivan was a participant in the WhatsApp group (“WAG”) until 30 October 2023. The Claimant contends that, during this Case Number: 6006151/2024 4 time, she became aware of his involvement with BECTU and that he was the author of the anonymous email correspondence sent on behalf of the group. Ms O’Sullivan admits that on 28 November 2023 she informed the Respondent of the existence of the WAG but denies disclosing either the Claimant’s trade union activities or his authorship of the anonymous emails. The Claimant submits that this is implausible. In support, he points to Slack communications between Ms O’Sullivan and Mr Charman on 4 March 2024, which, when read in their entirety, suggest that discussions regarding the WAG had taken place prior to this date—despite the Respondent’s denial. He specifically refers to Ms O’Sullivan’s use of the phrase “low down,” which he argues can only reasonably be interpreted as a reference to her passing on information—information which, in the context of the WAG, concerned trade union matters communicated by the Claimant.b. The Claimant also relies on events involving a former employee, Billy, who was an active participant in the WAG in June 2023. The Claimant recalls a conversation with the then-General Manager, Roisin, about the first anonymous email sent by the group, during which Roisin indicated she believed Billy to be the author, despite the Claimant stating it was a collective effort. Billy was subsequently dismissed in July 2023, which the Claimant suggests may have been linked to his perceived involvement.c. The Claimant gave evidence that he has a distinctive tone or style of writing, which would have made it relatively easy to identify him as the author of the anonymous emails. Furthermore, he refers to an email from the Respondent to LightHR dated 1 March 2024, in which the fourth bullet point refers to “taking personal data without permission to create an anonymous email.” The Claimant argues that this clearly implies the Respondent had identified him as the author. Notably, this reference was omitted from the formal dismissal letter.d. The Claimant asserts that the reasons given for his dismissal were not credible and lacked substance. He submits that the only reasonable and genuine explanation for his dismissal was his involvement in trade union activities on behalf of BECTU. Corinne O’Sullivan[15]Ms O’Sullivan’s evidence was that she chose to leave the WhatsApp group (“WAG”) because, in her view, it had become toxic. She stated that inappropriate language was used, former employees remained participants, and disputed issues with management that had already been resolved with Case Number: 6006151/2024 5 the Respondent continued to be discussed within the group. This is the information she provided to the Respondent.[16]I do not accept that Ms O’Sullivan disclosed to the Respondent the Claimant’s involvement with BECTU or that he was the author of the anonymous emails. My reasons for this conclusion are as follows:[17]The earliest reference in the WAG to terms and conditions—specifically regarding a pay rise—appears on 19 June 2023 at 17:53:40, when the Claimant informed the group that staff would not be receiving a pay increase. Within seconds, he shared a draft email with the group, which was positively received. The following day, on 20 June 2023 at 11:27:30, Zeevahr, suggested that the group consider joining a union, and at 11:28:35 she specifically proposed BECTU. The Claimant subsequently sent a second draft email to the group on 9 July 2023 at 15:56:07, and a third draft email on 16 July 2023 at 21:18:39. On 17 July 2023 at 09:30:15, Billy informed the group that he had failed his probation and had been dismissed. Later that same day, at 10:50:41, the Claimant proposed giving seven days’ notice for strike action. At 21:31:58 on 17 July 2023, he shared a fourth draft email, which in its final paragraph referred to employees exploring a relationship with BECTU. Ultimately, the group joined BECTU en masse on 31 July 2023.[18]Ms O’Sullivan was a member of the WAG throughout the entirety of this period and she joined BECTU on 31 July 2023. I find that had Ms O’Sullivan intended to disclose the Claimant’s trade union activities, or his authorship of the anonymous emails, to the Respondent, she would have done so at some point between 19 June and 31 July 2023. I am not persuaded that she would have delayed such disclosure until 28 November 2023 after the employees expressed dissatisfaction with the Respondent and had already joined the union.[19]Furthermore, there is no reasonable explanation as to why the Respondent would have waited until 5 March 2024 to dismiss the Claimant if they had been aware—whether through Ms O’Sullivan or otherwise—of his trade union activities several months earlier, between June and November 2023.[20]I accept Ms O’Sullivan’s explanation that she left the WhatsApp group (“WAG”) because she found, in her view, that it had become toxic. The Claimant argues that the examples provided by Ms O’Sullivan do not amount to toxicity and that in evidence she described the group as “negative.” However, I find that such an assessment is inherently subjective.[21]I accept that Ms O’Sullivan genuinely felt the WAG was no longer something she wished to be part of. This finding is consistent with the text exchange between Ms O’Sullivan and the Claimant on 30 October 2023, in which the Claimant agreed with her sentiments. Ms O’Sullivan stated, “…Big love to the Union stuff…but I feel really uncomfortable being in it…” The Claimant responded, “…hey yeah, I was gonna say something in there, Case Number: 6006151/2024 6 it’s gone off the rails a bit…” He further added, “…hopefully can get a more streamlined chat going with just current staff, no bitching or anything, just good old union comms…” Ms O’Sullivan replied, “…yeah let me know if anything happens I can be a part of, as is I’d rather be left in the dark…”[22]I am satisfied that Ms O’Sullivan only provided the very limited information outlined in herevidence.
[23]Moreover, I do not believe that any further details of the Claimant’s involvement in trade union activities were disclosed to the Respondent after November 2023. The Respondent was in communication with Yann Allsopp of BECTU from December 2023 concerning voluntary recognition. I am satisfied that, had the Respondent intended to dismiss the Claimant on the grounds of his trade union activities, and had they possessed knowledge of these activities—which at that time included training to become a union representative—Mr Charman would not have delayed action while taking a month’s holiday in December, only to return and then wait a further two months before dismissing the Claimant on 5 March 2024.[24]Submissions were made regarding the natural and ordinary meaning of the phrase “low down,” with the argument that it signifies the provision of information. It was contended that Ms O’Sullivan’s use of the phrase suggested she informed the Respondent that the Claimant, was the leading figure in the WhatsApp group (“WAG”), providing trade union-related information to employees.[25]Having regard to my previous findings, I do not accept that Ms O’Sullivan disclosed the Claimant’s trade union activities to the Respondent. I am not satisfied that the phrase “low down” indicates that the Claimant was informing employees about trade union matters.[26]Furthermore, I do not accept that the Slack communications can reasonably be interpreted as evidence that Ms O’Sullivan and Mr Charman had prior discussions about the WAG. Billy[27]Upon review of the WhatsApp group (“WAG”), it is evident that Billy was a vocal member. The Claimant gave evidence that he had a conversation with the General Manager at the time, Roisin, who assumed that Billy was the author of the anonymous email. Shortly thereafter, Billy was dismissed.[28]I accept that Billy was a vocal participant in the WAG. However, the Claimant was equally, if not more, vocal. If the Respondent had received any information about the so-called vocal leaders of the WAG, it would necessarily have included the Claimant. Furthermore, the conversation with the then-General Manager ended with the Claimant confirming that the email was a group effort. There is no reasonable basis to disregard this. I Case Number: 6006151/2024 7 am not satisfied that Billy’s dismissal was linked to the conversations held on the WAG. Taking personal data without permission to create an anonymous email[29]The Claimant contends that the fourth bullet point in the email dated 1 March 2024 constitutes cogent evidence that the Respondent had prior knowledge that the Claimant was the author of the anonymous emails.[30]The Respondent’s evidence is that the email addresses of the staff who were CC’d on the anonymous emails exhibited errors similar to those found in the staff email system known as “Deputy.” Mr Charman was certain that at least one manager was involved, as only managers had access to the system, but he did not know which manager it was. Consequently, he included this information in his email to LightHR. The Respondent explained that he later removed this detail because “Deputy” was unable to provide time-stamped login records that could identify the responsible individual, and he had no direct evidence implicating any particular person.[31]Ms Stanley submits that this explanation was inadequately conveyed in the email, which appeared to focus solely on the Claimant.[32]I accept the Respondent’s evidence as consistent and reasonable. Mr Charman suspected all managers, including the Claimant. I am not satisfied that his failure to specify this to LightHR undermines his credibility. Upon realising that he lacked evidence and was unable to obtain it from “Deputy,” he withdrew the complaint. Grounds for Dismissal[33]The Claimant argues that the WhatsApp group (“WAG”) formed part of the reason for his dismissal because Ms O’Sullivan described the group as toxic. However, Ms O’Sullivan did not suggest that the Claimant himself was toxic, and it is notable that only one example of toxic comments was provided. The Respondent’s case is that no substantive enquiries were made regarding the contents of the group. On balance, this argument lacks substance and is insufficient to justify dismissal.[34]The conversation involving Liam, referencing another employee, Robyn, did not mention the Claimant. Additionally, the text message to Keegan cannot reasonably be construed as harassment. The exit interview with Lana, which referred to the Claimant as responsible for a “bad vibe,” similarly falls short of constituting a sufficient reason for dismissal.[35]The Claimant did not breach confidentiality in the meeting on 2 August 2023 concerning Billy’s dismissal. The Claimant did not disclose the reasons for Billy’s dismissal; Mr Charman mentioned several reasons, and the Claimant Case Number: 6006151/2024 8 clarified that those were not the actual reasons for Billy’s dismissal. This cannot properly be regarded as a breach of confidentiality.[36]The Claimant also contends that the Respondent failed to follow a fair disciplinary process and, critically, did not provide him with evidence supporting their claims at the time of dismissal.[37]It is apparent that the Respondent sought to conceal the true reason for the Claimant’s dismissal.[38]I do not accept the Claimant’s submissions. Both Mr Charman and Ms Swift gave consistent evidence regarding the cause of their concern. They became aware of a WhatsApp group (“WAG”) that included former employees who had been dismissed as well as new employees. Their principal concern was that disputed issues between the employees and management, which in their view had been resolved during the summer, were still being discussed and communicated to new employees damaging morale, with the Claimant providing that information.[39]I accept that Ms Swift did not press Ms O’Sullivan for further details as she did not wish to compel Ms O’Sullivan to betray any confidences. Mr Charman’s focus was on the Claimant’s leading role in the WAG, in circumstances where the disputed issues should have been considered resolved. The Respondent had no detailed knowledge of the WAG beyond the limited information provided by Ms O’Sullivan.[40]Further, Mr Charman attributed the issues involving Liam and Keegan to the Claimant, as well as noting that the Claimant was named by Lana. In the meeting on 6 August 2023, Mr Charman felt undermined because the Claimant was highlighting the reasons why Billy was not dismissed, despite Mr Charman’s inability to disclose the actual reason for his dismissal due to confidentiality. This led him to feel that the Claimant was deliberately undermining his position.[41]I find that Mr Charman viewed all the circumstances as a whole, rather than in isolation, and I accept that these concerns formed the reasons for the Claimant’s dismissal.[42]The Respondent engaged LightHR to assist with the process. It would be unusual to pay for such services without following their advice. The Respondent’s evidence is that they followed LightHR’s guidance regarding the procedure and the evidence to provide to the Claimant. I accept this evidence.[43]Considering all the evidence in the round, I find that the Respondent had no knowledge of the Claimant’s trade union activities and that the dismissal was unconnected to any trade union activities within the meaning of section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992. In Case Number: 6006151/2024 9 light of these findings, the Claimant’s alternative arguments fail, and I do not need to address the evidence of Yann Allsopp.Conclusions
[44]I accept that the Claimant’s activities within the WhatsApp group (“WAG”) fall within the scope of section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992.[45]However, I find that the Respondent had no knowledge of the Claimant’s trade union activities, and that the reason for the Claimant’s dismissal was unrelated to those activities.[46]Accordingly, the Claimant’s claim for automatic unfair dismissal under section 152 of the 1992 Act is unfounded. The claim is dismissed. Approved by: