In the case of Metroline RATPDEV Ltd v Morris, the EAT held the Claimant’s activities of storing, using or disseminating confidential information did not amount to ‘trade union activities’ and did not, therefore, attract the protection of automatic unfair dismissal.
The Claimant was a trade union representative and was in possession of confidential information relating to the company’s recent restructure. One of the company’s line managers recorded notes regarding the restructure in a personal diary and someone within the business took photographs of these notes without the line manager’s knowledge or consent. As several members of the Claimant’s trade union were affected by the restructure, the photographs were sent to the Claimant. The Claimant shared the photographs and was dismissed for doing so.
The tribunal found that the Claimant’s dismissal was automatically unfair because it related to carrying out trade union activities. On appeal, the EAT held that the tribunal judge had failed to consider whether the Claimant’s activities went beyond his role as a trade union representative and set aside both findings of automatic and normal unfair dismissal. The EAT judge commented
“the information retained and stored by the Claimant was information that was private, confidential and unlawfully obtained. In my judgment, as a matter of principle, dismissal for the retention of unlawfully obtained information for trade union activities in general does not enjoy the protection of section 152 (automatic unfair dismissal for taking part in trade union activities”
The case was remitted to a different tribunal for a rehearing and the EAT warned that if the Claimant’s claims were to fail on a rehearing, the tribunal judge should carefully consider whether a costs order should be made against him.
Whilst a welcome decision for employers in demonstrating that trade union reps cannot hide behind their status when carrying out unlawful or wrongful activities, employers should still take care to assess whether an individual’s acts constitute lawful trade union activities. If you are unsure, please speak to a member of our employment team.