Azam v Ofqual

For the purposes of section 152(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, the tribunal must determine as a question of fact the reason or principal reason for dismissal. An employer’s anti-union hostility is not a necessary element.

Conduct undertaken in a union capacity is not automatically protected merely because it concerns union business. The manner of the conduct is ordinarily immaterial, but activity carried out dishonestly, in bad faith, for an extraneous cause, or otherwise outside the proper scope of trade union activities may fall outside the statutory protection. That evaluative question is one of fact and degree.

The Claimant, a PCS branch chair employed by Ofqual, distributed to union members a spreadsheet concerning proposed grading changes. The Employment Tribunal found that the spreadsheet had been supplied in confidence, that she had been expressly instructed not to distribute it, and that she had misled the branch executive committee when obtaining its approval for distribution.

The Tribunal held that the reason for dismissal was gross misconduct, rather than her other union activities, and dismissed her claim of automatic unfair dismissal under section 152(1) of the Trade Union and Labour Relations (Consolidation) Act 1992. The Claimant appealed, contending that distributing the spreadsheet was itself protected trade union activity.

1. Appeal dismissed. The Employment Tribunal had addressed both the Claimant’s case that the asserted misconduct was a pretext for dismissal because of her other union activities and her case that the distribution itself was protected union activity.

2. Under section 152(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, the reason or principal reason for dismissal is a question of fact for the Tribunal. The EAT could interfere only if the Tribunal’s conclusion as to the reason, and whether it was prohibited, was impermissible. The Tribunal permissibly found that the reason was the deliberate disclosure of confidential information in breach of contract and of a direct managerial instruction.

3. Trade union activity is not protected regardless of its character. The manner in which activity is performed does not ordinarily matter, and an employer cannot define the scope of union activity by requiring conduct it approves. However, conduct performed dishonestly, in bad faith, for an extraneous cause, or otherwise so as to fall outside the proper scope of union activity is not within the protection.

4. The questions whether conduct is an activity of an independent trade union and whether its manner removes it from that scope are not necessarily separate. They involve a fact-and-degree assessment. The ACAS Code of Practice No 3 - Time Off for Trade Union Duties and Activities 2010 could assist the Tribunal in assessing restrictions arising from confidential employer information.

5. On the findings that the Claimant deliberately withheld the confidentiality conditions from the branch executive committee, the committee’s endorsement was vitiated. The Tribunal was entitled to conclude that distributing the spreadsheet was outside the pursuit of lawful trade union activities. It therefore was not a prohibited reason under section 152.

• Employment Appeal Tribunal: appeal dismissed: [2015] UKEAT 0407_14_1903.
• Employment Tribunal, Birmingham: dismissed the claims for unfair dismissal, automatic unfair dismissal, wrongful dismissal and breach of contract. Its judgment was sent to the parties on 18 August 2014.