22 June 2018
It is automatically unfair to dismiss an employee for taking part in trade union activities at an appropriate time. It is also unlawful to subject an employee to a detriment on this basis. For a union official, union activities include seeking to present a case on behalf of his/her members.
The Court of Appeal has found, in Morris v Metrolink RATP DEV LTD, that the use of private information obtained without consent fell within the scope of trade union activities.
This overturned the decision of the Employment Appeal Tribunal, which we reported last year.
Mr Morris, a union official, was made aware of the existence of a photograph of a manager’s diary which he believed to be detrimental to a union member affected by redundancy. The photograph was taken without consent but Mr Morris had not had any involvement in gathering the information.
He asked for a copy in order to investigate a matter that could have affected the interests of his members in a redundancy situation. He did not circulate it but did inform HR, orally and in writing, as well as lodging a collective grievance about the redundancies.
He was dismissed for gross misconduct on the basis that he had retained a copy of the photograph on his computer and had shared it by referring to it in the letter to HR.
The EAT found that the protection for trade union activities did not cover the wrongful or unlawful retention of confidential information. The EAT took the view that Mr Morris, was so unlikely to succeed that if he proceeded with his claims and was unsuccessful, he would have to pay Metrolink’s legal costs.
Undeterred, Mr Morris’s appealed to the Court of Appeal.
The Court commented that union representatives receiving leaked information is not a surprising matter. It further stated that a “strict moralist” may decline to receive it, but that it was not concerned with an “ethics seminar”. The Court found that his conduct in storing the photograph was not separate from the context of the collective grievance, which was part of his trade union activities. The dismissal was therefore automatically unfair.
This case shows that, even where an employee has knowingly used information which has been gathered illicitly and in breach of data protection laws, the context must be taken into account in any disciplinary decisions.