Mr A Donald v Represented by:10 Mr B Dawes - Trade Union Representative EMG Scotland Limited — 2025

Mr A Donald applied for interim relief under s161 of the Trade Union and Labour Relations (Consolidation) Act 1992 in connection with an automatically unfair dismissal claim said to arise under s152 of that Act. The tribunal noted that, to grant interim relief, it had to be satisfied that the underlying complaint was likely to succeed, including that the claimant was dismissed within s95(1)(c) ERA 1996 and that the principal reason for dismissal fell within s152. The hearing also referenced s128 ERA 1996, but the tribunal said that provision was not relevant to this claim.

On dismissal, the claimant argued that the respondent’s conduct between October 2024 and March 2025 amounted to a fundamental breach of the implied term of mutual trust and confidence. The tribunal was not persuaded that the claimant was likely to satisfy the Malik test. It considered that the October 2024 emails, which raised work issues, were the kind of communications an employer is entitled to send, and it did not accept that their content and tone were such as to destroy or seriously damage trust and confidence. The tribunal also rejected the submission that the refusal to communicate directly with the claimant’s trade union representative, or to allow that representative to attend proposed welfare meetings, was likely to amount to a breach of contract. It noted that the meetings were not disciplinary or grievance meetings, so there was no statutory right to accompaniment.

The tribunal further rejected the submission that the respondent’s conduct was likely to constitute a detriment under s146 or that it had the sole or main purpose of penalising or deterring the claimant from using trade union services. It found that the claimant was being treated like any other employee who would be expected to communicate directly with the employer, and that the respondent’s threat of legal action was directed at the trade union representative rather than the claimant. The tribunal also held that the claimant’s reliance on a disability-related explanation did not assist him, and observed that no disability discrimination claim had been pled in the ET1.

On causation, the tribunal said the claimant’s own case showed more than one reason for the respondent’s conduct, including events that pre-dated any use of trade union services. It therefore was not satisfied that the claimant was likely to show that the principal reason for any dismissal was that he had made use of trade union services. The tribunal also noted that the fact that later conduct may have been the “last straw” did not make it the sole or principal reason for a constructive dismissal. For those reasons, it held that the interim relief application was not well-founded and dismissed it.