Yes, held the Court of Appeal (CA) in the recent case of Morris v Metrolink RATP Dev Ltd, holding that the limited way in which the information was used did not fall outside the scope of 'trade union activities'.
The Claimant was a trade union representative who was sent photographs of a manager's diary entries, taken without consent. The diary entries contained comments relating to union members who had failed an assessment forming part of a restructuring exercise and were put at risk of redundancy. On receiving the images, the Claimant kept them to show to HR, believing that the comments were detrimental to the union members in question.
When the HR director learned of these events, disciplinary proceedings were instigated against the Claimant and he was found to have stored and shared confidential information. This was treated as gross misconduct and the Claimant was dismissed without notice. He brought a claim of unfair dismissal.
The Background Law
Employees taking part in the activities of an independent trade union are protected from dismissal under section 152(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act). Where this is the principal reason for dismissal, the dismissal will be automatically unfair.
The Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) Decisions
The ET ruled that storing the information and raising concerns on behalf of other union members amounted to participation in trade union activities and therefore the Claimant's dismissal was automatically unfair under s.152(1)(b) of the Act.
The employer appealed successfully to the EAT. The EAT found that the protection of s.152 is lost where union officials are found to have acted unreasonably or maliciously in carrying out their functions and that dismissal for the retention of unlawfully obtained information will generally not enjoy the protection. In their view, the Claimant knew that the information he retained had been unlawfully obtained and therefore his conduct took him outside the protection of s.152.
The Claimant appealed to the CA.
Court of Appeal
The CA allowed the appeal and restored the decision of the ET. In reaching this decision, the CA considered that the limited way in which the Claimant had used the confidential information was not a sufficient departure from good industrial relations practice so as to take his conduct outside the scope of 'trade union activities'. The protection offered by s. 152 therefore applied and the dismissal was unfair.
Whilst this case is very fact-specific, it confirms the correct approach to s. 152 of the Act and is an important reminder to employers that any dismissal relating to an employee taking part in the activities of a trade union will be automatically unfair. The court in this case observed that it is not uncommon for a union representative to be given information obtained without consent and employers should therefore be aware that receipt and retention of such information will not automatically amount to gross misconduct.