The Respondent is a contract cleaning company which specialises in retail clients. The claimant was an employee of the respondent and worked at Topshop’s main store in Oxford Street, London.

In 2016, the claimant helped organise a 200-person protest outside the store, demanding better rates of pay. She was later dismissed. The respondent denied that the claimant was dismissed because of her trade union membership or any legitimate trade union acts. Instead, it claimed she was dismissed on grounds of gross misconduct relating to her activities on social media and for breaching the company’s social media policy.

While the respondent argued that ‘large scale public direct-action protests’ cannot come within the scope of a union’s ‘typical activities,’ the tribunal disagreed. It held that while this may be ‘uncomfortable’ for some employers, there is no recognised limitation on the sort of demonstrations that occurred. The tribunal held that the dismissal was substantively unfair and that “No reasonable employer would have been acting reasonably in dismissing Mrs Benavides in the circumstances.”

Practical Lessons

The tribunal was extremely forthright in stating that large scale protests can be considered a legitimate part of a union’s activities. The judgment makes clear that a tribunal must conduct a close examination of whether an employee’s actions can ‘sensibly be treated as a reason for dismissal distinct from the fact that it occurred in the context of trade union activities.’

Before dismissing an employee, employers should think very carefully whether the picture is muddied by any trade union activity. Even if this activity is ‘ill-judged or unreasonable’, there must be some other, genuinely separable reason for the dismissal.
https://assets.publishing.service.gov.uk/media/5c37606340f0b67c6c8d07eb/Miss_S_Benavides_-v-_Britannia_Services_Group_Limited_-_Case_2208186_2016_-_Full.pdf