If an employee is dismissed as a result of taking part in trade union activities, section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992, hereafter referred to as TULRCA, means that the dismissal is automatically unfair. However, there are circumstances in which the meaning of ‘trade union activities’ is not clear cut. The case of Metrolink RATPDEV Ltd v Morris addressed this issue when it looked at whether the dismissal of a trade union representative was unfair.
Mr Morris was a union representative at Metrolink. In June 2014, the company held a restructuring exercise and fourteen employees, one of whom was Mr Morris, were assessed to determine who would get one of the twelve customer service team leader positions available.
Five candidates failed the assessment. Of these, four were members of Mr Morris’ union. Mr Morris raised a grievance about the way that the assessment exercise had been carried out and this was resolved at a meeting in July 2014.
The month after that meeting, a photograph was taken of confidential notes about the assessment exercise written in a diary that belonged to Mr Morris’ line manager, without his knowledge or consent. The line manager had not been at the assessment exercise.
One of the four unsuccessful candidates mentioned the existence of the photograph to Mr Morris. He asked to be sent it in his capacity as a union representative, as he considered this was evidence relating to the grievance that he had raised about the assessment exercise.
He had a meeting with HR and brought up the subject of the photograph. The employer carried out an investigation and Mr Morris was dismissed for gross misconduct because he had stored and shared confidential information relating to individuals within the business.
He brought a claim for automatic unfair dismissal because the reason for his dismissal was that he had been involved in trade union activities.
The Employment Tribunal came to the decision that because Mr Morris had stored the photograph and raised the matter on behalf of fellow union members, he had been taking part in trade union activities and that as a result of this, his dismissal was automatically unfair under Section 152 of TURLCA. Metrolink appealed.
The Employment Appeal Tribunal said that not every act carried out for trade union purposes falls within the scope of Section 152. One of the acts that was not covered by the Section was the holding of unlawfully obtained information.
It said that if the unlawful activity had only constituted a very small part of union activities, then this might not cause the act to fall outside Section 152’s protection. The same would apply if the act had not been deliberate.
However, Mr Morris knew that the photograph was private, confidential, and unlawfully obtained and had admitted receiving and storing it. He could not prove that he intended to return it or recover the copies of the information that had already been circulated. He was warned that his actions could lead to his employment being terminated without notice or payment in lieu of notice.
What the law says
Section 152 of TULRCA says:
“(1) For the purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee –
(b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time…”
What should employers do?
Tribunals have often given quite a wide interpretation of trade union activities, so much so that it has been hard for employers to know where they stand when initiating disciplinary action.
This case underlines the fact that there are times when Section 152’s protection will not apply. This will be particularly applicable when the activities were carried out in a way that was dishonest or in bad faith.
It is worth noting that such a decision will depend on the facts of the case and as such, may be hard to substantiate at a Tribunal hearing.
It is therefore important for employers to record all disciplinary or dismissal proceedings and to ensure that a fair and thorough investigation is carried out if these are being considered in response to allegations of employee misconduct.