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04 July 2018

The misuse of information will not negate a finding of unfair dismissal

The Court of Appeal has held, in Morris v Metrolink RATP Dev Limited, that protection for trade union activities will still apply to the unlawful retention of confidential information.

Mr Morris, the Claimant, was a union representative; he received a photograph of a diary entry made by a line manager who should not have been involved in the assessment of employees for redundancy in a restructuring exercise. Mr Morris then notified HR and raised a collective grievance.  Following this, he was dismissed for obtaining and sharing sensitive company information relating to individuals within the business.

Despite the ET ruling that Mr Morris’ dismissal was automatically unfair, the EAT overturned this decision, holding that protection for trade union activities did not extend to the wrongful or unlawful retention of confidential information.  However, the Court of Appeal upheld Mr Morris’ appeal, arguing that the limited way in which he used the leaked information directly concerned his members and did not take his conduct outside the scope of ‘trade union activities’ for the purpose of s.152 Trade Union and Labour Relations Act 1992.

This case highlights that even where an employee has knowingly used information that has been gathered unlawfully, the context must be taken into account in disciplinary decisions. This also serves as a stark reminder that confidential data should be stored securely to ensure that it is not accessible to members of staff who do not require the data for a legitimate purpose.

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