In Holmes v Kirklees Council [2026] EAT 80, the Employment Appeal Tribunal considered whether an Employment Tribunal had erred in rejecting claims for unfair dismissal, automatic unfair dismissal linked to trade union activities, and trade union detriment. Mr Holmes, a long-serving UNISON Branch Secretary, argued that disciplinary proceedings arising from allegations of threatening, bullying and intimidating behaviour were in reality a means of removing a troublesome trade union representative. Although the Employment Tribunal identified significant shortcomings in the investigation and disciplinary process, it concluded that the dismissal was fair and that the decision was based on misconduct rather than protected trade union activity.
The Employment Appeal Tribunal dismissed the appeal. It held that the Tribunal had been entitled to conclude that the employer's reason for dismissal was misconduct and that the disciplinary decision-maker had reached an independent decision after a thorough hearing. While the investigation had been poorly managed and the employee had not initially been given sufficient detail of some allegations, the Tribunal was entitled to find that the overall disciplinary and appeal process remained fair.
The EAT also confirmed that conduct occurring during trade union activities is not automatically protected. Where behaviour can properly be regarded as wholly unreasonable, extraneous to those activities, or genuinely separable from them, it may constitute a distinct and lawful reason for disciplinary action or dismissal. On the facts, the Tribunal had been entitled to conclude that the claimant's threatening and bullying conduct fell outside the statutory protection afforded to trade union activities, and no error of law had been established.
How would Lex HR have assessed this case before Tribunal?
To test Lex HR's Employment Tribunal Risk Analyser, we recreated a workplace scenario based on the facts reported in Mr P Holmes v Kirklees Council: [2026] EAT 80. All references to the Tribunal's findings, compensation award and appeal outcome were removed before the scenario was analysed by Lex HR. The assessment below shows the claims Lex HR identified and the likely Tribunal outcomes based solely on those underlying facts.
Lex HR Employment Tribunal Risk Analysis
| Potential Employment Tribunal claim | Lex HR assessment | Risk score |
|---|---|---|
| Ordinary unfair dismissal |
Likely upheld. On the scenario facts, there was a potentially fair reason based on conduct, and a Tribunal may accept that the employer had genuine concerns about threatening, bullying and intimidating behaviour. However, the process shows material fairness defects: no written terms of reference for the external investigator; senior management reviewed and influenced draft findings; allegations spanning years were said to be insufficiently particularised and partly historic; and the employee says he could not properly prepare his response. Those features go beyond the kind of minor procedural flaws that Tribunals may tolerate and are closer to serious investigative defects where investigators lack openness, fail to test evidence properly, or the employee is not given clear detail of the case to meet. A Tribunal is therefore likely to find that, even if the misconduct concern was genuine, the investigation and disciplinary process fell outside the range of reasonable responses. |
8/10 ■■■■■■■■□□ |
| Automatic unfair dismissal for trade union activities / reasons |
Balanced, but the employer still faces real risk. This claim may narrowly fail unless motive evidence is stronger than presently stated. The employee's long-standing full-time union role, strained industrial relations, and his case that he was targeted because of his prominence as Branch Secretary create a substantial forensic risk. Tribunals treat retaliatory action linked to union activity seriously, especially where senior management hostility and multi-role involvement suggest bias. However, on the stated facts, the employer can point to multiple complaints, including from union colleagues, alleging threatening and bullying conduct distinct from legitimate union representation. If the Tribunal accepts that the dismissal was for misconduct separate from protected union activity, the claim may fail notwithstanding procedural unfairness. Outcome will likely turn on disclosure and witness evidence about management motive and report-editing influence. |
6/10 ■■■■■■□□□□ |
| Trade union detriment short of dismissal |
Moderate risk; may succeed in part if the Tribunal infers that the process itself was tainted by anti-union motive. The suspension, prolonged investigation and disciplinary handling may amount to detriments if they were done to penalise or deter union activity. The factual indicators are the deteriorated industrial relations climate, the employee's senior union position, and his allegation that management used the process as a mechanism to target him. Against that, the employer has a plausible defence that the steps were taken because of misconduct complaints, not because of protected activity. Inappropriate behaviour during union business is not immunised from discipline if it is separable from legitimate representation. |
5/10 ■■■■■□□□□□ |
| Wrongful dismissal / notice pay |
Less likely than unfair dismissal, but still arguable. Wrongful dismissal turns on whether the employer can prove repudiatory misconduct, not merely reasonable belief. The allegations include threatening behaviour and a long-running pattern of bullying and intimidation, which, if proved, could justify summary dismissal. However, the employee's challenge that allegations were historic, vague and not properly particularised creates some risk that the employer may struggle to prove gross misconduct with sufficient precision. On the present facts, the employer has a better defence here than on ordinary unfair dismissal. |
4/10 ■■■■□□□□□□ |
| Acas uplift exposure |
Possible if the employee succeeds on an underlying claim and the Tribunal finds unreasonable non-compliance with the Acas Code. The absence of clear investigation parameters, possible managerial interference with the report, delay, and alleged failure to give adequate particulars before the hearing all create Acas Code risk. Whether an uplift is ordered, and at what percentage, would depend on how seriously the Tribunal views the report review process and the adequacy of notice of the allegations. |
4/10 ■■■■□□□□□□ |
How did Lex HR compare?
Using only a reconstructed workplace scenario based on the facts reported in Holmes v Kirklees Council [2026] EAT 80, Lex HR identified ordinary unfair dismissal as presenting the greatest litigation risk, largely because of the apparent procedural shortcomings in the investigation and disciplinary process, including concerns about the investigation report, the lack of clear particulars and the handling of historic allegations. It also recognised a credible, though less certain, risk of automatic unfair dismissal and trade union detriment, reflecting the employee's long-standing role as a senior trade union official and allegations that the disciplinary process was motivated by hostility towards his union activities.
The Employment Appeal Tribunal ultimately reached a different conclusion. While accepting that there had been significant procedural shortcomings, it held that the Employment Tribunal had been entitled to find that the disciplinary and appeal process, viewed as a whole, remained fair and that the dismissal was for misconduct that was properly separable from protected trade union activities. The comparison illustrates how, when only the underlying workplace facts are assessed, procedural failings may appear to create substantial litigation risk, even where a Tribunal later concludes that those defects were remedied during the disciplinary process and appeal.