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05 August 2018

111: Court of Appeal rules that trade union official was automatically unfairly dismissed

Under the Trade Union Labour Relations (Consolidation) Act 1992, it is automatically unfair to dismiss an employee for taking part in trade union activities (section 152).

In Morris v Metrolink RATP DEV Ltd, the Court of Appeal has ruled that a trade union official’s use of confidential leaked information fell within the scope of trade union activities, and that his dismissal was therefore automatically unfair.

Mr Morris, a union representative, received anonymously a photograph of an entry from a manager’s diary which contained detrimental information about union members who had failed an assessment centre in a company restructuring exercise. He kept the information to discuss with HR, and used it to raise a grievance about the selection process on behalf of his members. However, his actions were treated as gross misconduct and he was summarily dismissed for the unlawful storage and use of confidential information. Mr Morris subsequently brought a claim of automatically unfair dismissal.

The Employment Tribunal held that Mr Morris had been automatically unfairly dismissed for trade union activities because he had received and disclosed the information in the course of his role as trade union representative. On appeal, the Employment Appeal Tribunal overturned this decision, finding that Mr Morris had unlawfully retained confidential information, and that his actions therefore fell outside the scope of trade union activities.

The Court of Appeal has now allowed an appeal by Mr Morris. It concluded that the way in which he had used the leaked information was not a sufficient departure from good industrial relations practice to take his conduct outside the scope of trade union activities. Mr Morris was only a recipient of the photograph and there was no evidence to suggest that he had made further copies or circulated it. The information also related primarily to union members, not the company, and in any event, he had only disclosed it to the company. In addition, the information appeared to reveal a serious irregularity in the assessment centre procedure which potentially affected his members.

This case highlights that misconduct by a trade union official when carrying out union activities must be wholly unreasonable to justify a dismissal. The trade union official in this case had acted legitimately because he had used the information for reasonable purposes, informed HR promptly, and not circulated it more widely. The Court of Appeal acknowledged that it is not unusual for a union representative to receive unsolicited leaked information obtained without the owner’s consent, but commented that it would not get involved in the ethics of this issue. It may be very difficult for employers to decide whether a data breach amounts to gross misconduct in such circumstances.

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