Employment Law Digest July 2026: Case law update

Dismissal for taking part in alleged protected trade union activity

In Young v Royal Mail Group Ltd:

• Mr Young worked for Royal Mail as a delivery driver and was a member of the Communication Workers Union (CWU).
• During a period of CWU-organised industrial action, a WhatsApp group was created for union members at the depot.
• Feelings among staff were running high in the period leading up to strike action.
• Mr Young was a union member only, holding no office or representative role.
• Mr Young posted two messages in the WhatsApp group: “F*** Royal Mail”, accompanied by a laughing emoji; and “Maybe they need to choose sides [the two named individuals] are you for the people or against the people the wrong answer will result in your car being blown up although looking at [named individual’s] not sure he would be bothered lol”.
• A trainee manager complained, stating that he felt threatened and intimidated by the second message, and that he did not regard it as humorous despite the “lol”.
• During the investigation, Mr Young accepted that he had made the posts, said that the second message was intended as a joke, apologised, and acknowledged that he could understand why it had been interpreted as inappropriate.
• Royal Mail’s conduct and social media policies classified threatening or intimidating behaviour towards colleagues as potentially amounting to gross misconduct.
• At a disciplinary hearing, the decision-maker concluded that the second message amounted to threatening and intimidating behaviour towards colleagues who had chosen not to strike, and that the first message also breached standards of conduct.
• Mr Young was dismissed for gross misconduct, namely the use of threatening and intimidating behaviour towards colleagues, with reliance placed on the relevant policies and the impact of the message on the recipient.

Mr Young brought a claim in the Employment Tribunal (ET) arguing that his messages, properly characterised, amounted to taking part in the activities of an independent trade union. He claimed that his dismissal was automatically unfair (“s.152 protection”).

His claim before the ET was dismissed. The ET found that threatening or joking references to violence are qualitatively distinct from encouraging participation in ballots or industrial action and fall outside s.152 protection.

The ET characterised the first message as abuse of the employer. The ET found that the second WhatsApp message was reasonably understood by the recipient as a threat, that it created a sense of menace, and that it was not excused by being presented in a jokey manner.

The ET did not, explicitly, decide whether the second message amounted to a threat or a joke indicating that it did not need to do so because neither could amount to trade union activity.

Accordingly, neither post constituted participation in trade union activities and Mr Young was not dismissed for taking part in such activities. The ET found that the reason for dismissal was misconduct. The claim was dismissed.

Mr Young appealed and argued (1) that the ET had failed to apply the correct legal test in determining whether his dismissal was by reason of taking part in the trade union activities and (2) that if it had applied the correct test, its conclusions were wrong by failing to take account of relevant factors including the imminence of industrial action; and the nature and purpose of the WhatsApp group as a forum established by union representatives for union members in anticipation of strike action.

The Employment Appeal Tribunal dismissed the appeal:

• The question of whether conduct constitutes protected trade union activity is fact sensitive; and
• the ET was entitled to approach the matter as one of characterisation, and to determine, on a common sense assessment of the facts as a whole, that the conduct relied upon was properly not to be regarded as participation in trade union activities.

Posting a message in a union WhatsApp group during or in the period leading up to strike action does not automatically amount to protected trade union activity. It is a fact sensitive question and the content, tone and effect of the message will be relevant to determine the matter. If disciplinary action is to be taken, employers need to clearly identify and evidence the real reason for dismissal, distinguishing misconduct from protected union activity.

Training costs clawback and unreasonable restraint of trade

In Geeks Limited v Watts:

• Geeks provided IT services to clients through its staff, including developers and technicians.
• Mr Watts was employed as a trainee QA engineer.
• His contract included training fee clawback provisions requiring repayment for purported “training” costs for a six-month training period which covered ‘learning the technologies, methods, technical architectures, technical leadership and mentoring practices’. The training costs included the cost of a mentor and time spent on ‘study and practice activities’.
• The total ‘training cost debt’ was calculated to be £8,108 and the contract specified that it would be repaid ‘by work contribution’ whereby after 12 months’ service, the debt would reduce by 1/18th for each subsequent complete month of full-time employment until it reached zero, or, it could be repaid by ‘monetary payment’ if the employment ended prior to complete repayment of the debt (except where the employment ended due to redundancy).
• Mr Watts’ salary was £18,000. He requested a pay rise which was refused. He resigned after eight months’ service to take up better paid employment elsewhere.
• Geeks sought £8,108 under the clawback provisions.
• Mr Watts argued these provisions were an unenforceable restraint of trade.

In the County Court, the judge found that although the clawback provisions amounted to a restraint of trade, they protected a legitimate interest and were not unreasonable. Accordingly, Mr Watts was ordered to pay £8,108 plus interest to Geeks.

On appeal before a circuit judge, Mr Watts argued that the decision conflicted with House of Lords authority. His appeal was dismissed.

However, the Court of Appeal allowed Mr Watts’ appeal, finding that the repayment provisions were unreasonable and unenforceable:

• The Court of Appeal assessed the case on the assumption that Geeks had a legitimate interest in maintaining a stable, trained workforce and went on to consider whether the provisions were justified on the basis that they went no further than reasonably necessary to protect that legitimate interest.
• Although the clawback provision did not seek to limit where Mr Watts went on to work after leaving Geeks, it amounted to a financial disincentive to leave and as such engaged the restraint of trade doctrine.
• The repayment provisions applied whatever the reasons for the employee’s departure (with the single exception of redundancy) and irrespective of whether he left for a job in the technology sector or elsewhere.
• Standing back and looking at the broader picture, the effect of the clawback provision was that in the early months of employment Mr Watts was, as a low paid worker, reduced in retrospect to the equivalent of an unpaid intern albeit with a loan repayable over a period.
• The repayment provisions went further than reasonably necessary to protect the legitimate interests of Geeks in maintaining the stability of their trained workforce.
• The Court of Appeal set aside the order requiring Mr Watts to pay the training costs.

This case is the first time the Court of Appeal has considered whether training costs clawback provisions in employment contracts engage the restraint of trade doctrine. Employers must ensure that provisions are carefully drafted as the onus is always on the employer to show that the relevant clause goes no further than necessary to protect its legitimate interests. Care is also needed with the method of calculating the costs, which in this case was found by the court to be ‘highly questionable’, as the costs must genuinely reflect the costs incurred.

Disability discrimination – Guaranteed interview schemes

In Shah v Home Office:

• Mr Shah was employed by the Home Office. He suffered from depression and was off sick between June 2015 and January 2016.
• In May 2017, he applied for a new role under the Home Office’s ‘Guaranteed Interview Scheme’ (GIS), which gave disabled applicants a guaranteed interview if they met the minimum criteria for the role.
• Mr Shah’s line manager suspected that he had falsely claimed to be disabled to obtain an interview under the GIS and a disciplinary investigation was started.
• Mr Shah explained his position and the disciplinary investigation was ultimately discontinued. However, he brought claims including discrimination arising from disability and victimisation.

The Employment Tribunal (ET) dismissed both claims. It found that Mr Shah had applied for the role under the GIS because of his disability but the disciplinary investigation had been because of the manager’s genuine concerns that he was dishonestly claiming an advantage he wasn’t entitled to, rather than because of anything connected with Mr Shah’s disability.

The Employment Appeal Tribunal allowed Mr Shah’s appeal:

• It found that Mr Shah had applied under the Guaranteed Interview Scheme because of his disability, and the disciplinary investigation arose from that application.
• The fact that the manager had a genuine, albeit erroneous, belief that Mr Shah was being dishonest did not prevent there being a sufficient link between his disability and the disciplinary investigation. He ticked the GIS box because he was disabled and that is what resulted in the investigation.
• The ET had focused on the sole motivation of the Home Office for the unfavourable treatment which was wrong. His use of the GIS only needed to have a significant influence on the decision to investigate him; it did not need to be the only or main reason.
• The EAT substituted a finding that the disciplinary investigation was something arising from Mr Shah’s disability and sent the case back to the same ET to consider whether the Home Office could objectively justify its actions. The EAT also sent the case back to reconsider the victimisation claim.

This decision highlights the potential risks and care needed in investigating misuse of disability-related adjustments.