In Morris v Metrolink RATP Dev Ltd, the Court of Appeal restored an employment judge's finding that the dismissal of a trade union official for unlawfully retaining and circulating confidential information was automatically unfair.
The trade union official claimed that he had used the information not solely for his own benefit but as part of a collective grievance on his members’ behalf. The question was whether his behaviour counted as legitimate trade union activity and, as a consequence, whether his dismissal had been automatically unfair contrary to s.152 of the Trade Union & Labour Relations (Consolidation) Act 1992.
Under s.98 of the Employment Rights Act 1996 (ERA) employees with at least two years' continuous service are protected from being unfairly dismissed. Section 152(b) of the Trade Union & Labour Relations (Consolidation) Act 1992 (TULRCA) also provides that the dismissal of an employee will be automatically unfair if the principal reason for the dismissal was that the employee had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time. In effect, the category of automatically unfair dismissal provides additional protection to union representatives in the execution of their role.
Case law has provided some guidance in this area, albeit limited. Lyon v St James Press Ltd explored the possibility of distinguishing between a dismissal for carrying out trade union activities and a dismissal for misconduct occurring in the context of such activities. In Lyon, two employees were dismissed for soliciting colleagues to join a trade union and claimed to have been unfairly dismissed by reference to paragraph 6(4) of Schedule 1 of the Trade Union and Labour Relations Act 1974. The Tribunal held that the claim fell outside the remit of paragraph 6(4) because the employer was entitled to take objection to the way in which the employees went about soliciting the colleagues.
On appeal, Philips J acknowledged that: "…the special protection afforded by paragraph 6(4) to trade union activities must not be allowed to operate as a cloak or an excuse for conduct which ordinarily would justify dismissal; equally, the right to take part in the affairs of a trade union must not be obstructed by too easily finding acts done for that purpose to justify dismissal". The EAT found that, on the facts of the case, the employees were not guilty of any misconduct and Philips J provided some helpful comment. He explained that not all acts in relation to trade union activity are, or should be, protected, for example: "…wholly unreasonable, extraneous or malicious acts done in support of trade union activities might be a ground for a dismissal which would not be unfair".
Relying heavily on the precedent set in Lyon, the Court of Appeal later decided in Bass Taverns Ltd v Burgess that a shop steward who resigned after he was demoted for making disparaging remarks about the employer to trainee managers was unfairly constructively dismissed for taking part in trade union activities. The employer had allowed the union to hold a meeting for recruitment purposes, but the employee made some critical remarks about the management's attitude to health & safety. The EAT found that the shop steward's remarks were not outside the scope of that permission the employer had given him. Even though, by the employee's own admission, his comments were "over the top", the Court of Appeal found that: "…nothing [he said was] beyond the rhetoric and hyperbole which might be expected at a recruiting meeting for a trade union". It follows that employees should not lose protection under TULRCA simply because something they do or say in the course of trade union activities could be ill-judged or deemed unreasonable. Rather, the conduct must be wholly unreasonable. The bar for dismissal is, therefore, high. However, if the employee is dishonest or malicious in their actions whilst performing trade union activities, it is a different story.
Where the employee's behaviour is unacceptable, employers make the distinction that the trade union activities are not the principle reason for the dismissal but some feature of the dismissal, which is genuinely separable. For example, a deliberate breach of confidence could fairly and sensibly be treated as a reason for dismissal, which is distinct from the fact that it occurred in the context of trade union activities.
Mr Morris (Mr M) was an employee of MRD Ltd and performed the role of both supervisor and a union representative for the Workers of England Union (WEU). In June 2014, MRD Ltd conducted staff assessments as part of a restructuring exercise in which it was proposed that the number of supervisors would be reduced. All those in scope of the exercise attended an HR assessment centre to assess their suitability of alternative roles. It was understood that the supervisors' line managers would not be involved in the process.
Five candidates failed the assessment centre (all of whom were WEU members) and were placed at risk of redundancy. Mr M lodged a collective grievance on behalf of the supervisors, in his capacity as representative of WEU. It later came to light that, following the assessment centre, Mr M's line manager (Mr LJ) had been briefed on the outcomes by his superior and written both his and her comments down in his work diary. The comments in respect of the five unsuccessful supervisors were adverse.
A colleague of Mr M's later took a photograph of the contents of Mr LJ's diary, without his knowledge or permission. One of the unsuccessful candidates saw the photo and took it as evidence that Mr LJ had been involved in the assessment, contrary to the announced procedure. The news got back to Mr M and Mr M asked to be sent a copy of the photograph. Mr M then raised a grievance with HR. He wrote to the department on WEU headed paper and raised "ongoing concerns" about the assessment process and Mr LJ's involvement. Mr M did not attach the photograph of Mr LJ's diary notes.
Metrolink ultimately found that Mr M had stored and circulated confidential information and was summarily dismissed for gross misconduct. Mr M claimed to have been unfairly dismissed both by reference to s.98 of the ERA and s.152 of TULRCA.
Employment Tribunal decision
The Employment Tribunal found that Mr M was dismissed for two key charges, namely the storing and sharing confidential information. The Judge clarified, however, that Mr M was not responsible for photographing Mr LJ's diary – he had only obtained a copy and mentioned it to the HR team to support his concerns about the assessment centre process and this meant that Mr M fell under the protection of s.152 of TULRCA. The Tribunal did not think this constituted gross misconduct and deemed his dismissal unfair.
The Tribunal's decision was reversed by the EAT. Judge Slade J relied heavily on the judgments of Lyon and Bass Taverns discussed above and held the firm view that: "…the reason for the dismissal was not because Mr M was taking part in trade union activities but for the gross misconduct in retaining unlawfully obtained confidential and private information". Therefore, Mr M had lost the protection granted by s.152 of TULRCA.
Court of Appeal decision
The Court of Appeal unanimously overturned the EAT's decision and restored the Tribunal's decision. Lord Justice Underhill considered two key issues:
- What is the protective scope of s.152 of TULRCA?
- If an employee receives leaked confidential information is he under a duty to delete it?
The Court upheld the view taken by Philips J in Lyon. Lord Justice Underhill agreed that employees will enjoy protection under s.152 of TULRCA unless their behaviour is "wholly" unreasonable.
Lord Justice Underhill highlighted six points:
- Mr M had nothing to do with the copying of Mr LJ's diary, he was merely a recipient of it.
- The reason Mr M asked for a copy of Mr LJ's diary was because it potentially revealed an irregularity in the assessment centre procedure, which affected both him and his colleagues.
- Mr M told HR as soon as possible after he received a copy of the diary. Although Mr M did not approach HR because he felt he was in a conflicted position (rather, he used it as evidence to support his case) it did not mean that he had acted in an underhand manner.
- Mr M did not make copies of the diary and did not circulate them to anyone else.
- Mr M only referenced the diary copies to support the weight of his letter to HR; he did not attach the diary copies and only mentioned them in indirect and general terms.
- Although it was a copy of a diary, it was a work diary and the information copied did not relate to Mr M personally. To the extent it was confidential, it was the supervisors' interests rather than that of the business that were primarily affected.
It was found that none of the reasons listed below justified the copying of Mr LJ's diary. Further, Mr M should have refused to receive the diary copies and destroyed any information that was sent to him. But, putting the moral question to one side, Lord Justice Underhill clarified that the very limited way in which Mr M used the leaked information (which directly concerned member of his union) was not a sufficient departure from good industrial relations practice. Mr M's conduct was therefore within the scope of "trade union activities" for the purposes of s.152 of TULRCA and his dismissal was unfair.
The Court agreed that the courts should not automatically find that the principles set out in Lyon and Bass Taverns are always established. It is important that employers - and the courts - make the right assessment otherwise the important protection that Parliament enacted for employees taking part in trade union activities could be undermined.
The key points for employers are as follows:
- If taking part in trade union activities, employees can engage in low-level misconduct, errors of judgement and display unreasonable behaviour without losing their statutory protection against dismissal. However, s.152 does not provide an excuse for conduct which would ordinarily justify dismissal.
- It may not be uncommon for union members to be given and use confidential information for their members benefit (whether they asked for the information or not). If employees inappropriately store and/or circulate confidential information, employers should consider whether a warning is first appropriate, before jumping to the conclusion to dismiss.