Metrolink RATPDev Ltd v Morris

Protection against automatic unfair dismissal for trade union activities under Trade Union and Labour Relations (Consolidation) Act 1992 section 152 does not extend to every act done for trade union purposes. Dismissal for deliberately retaining private, confidential information which has been unlawfully obtained will generally fall outside that protection, even if the employee says that the information was retained for union activities.

The application of that qualification is fact-sensitive. The significance and deliberateness of the unlawfulness may affect the result. A finding of ordinary unfair dismissal which depends entirely on an erroneous section 152 conclusion cannot stand.

The employee, a trade union representative, received and retained an image of a manager’s diary. The image had been taken without the manager’s consent and contained private and confidential information. The employee referred to the diary in a collective grievance concerning a staffing assessment process.

The Employment Tribunal held that he was dismissed for storing and sharing the information in the course of trade union activities. It therefore found the dismissal automatically unfair under section 152 of Trade Union and Labour Relations (Consolidation) Act 1992, and also unfair under section 98(4) of Employment Rights Act 1996.

The employer appealed. The central issue was whether retaining unlawfully obtained confidential information for asserted trade union purposes was protected activity.

1. Appeal allowed. The Employment Judge erred in holding that the employee’s storage and sharing of the diary information was protected by section 152 of Trade Union and Labour Relations (Consolidation) Act 1992.

2. Section 152 protects participation in independent trade union activities, but it does not protect every act undertaken for that purpose. The qualification expressed in Lyon v St James Press, [1976] ICR 413, applied: wholly unreasonable, extraneous or malicious conduct undertaken in support of union activities may found a dismissal which is not automatically unfair.

3. As a matter of principle, dismissal for retaining unlawfully obtained information for trade union activities generally does not enjoy section 152 protection. The issue remains fact-sensitive, including where unlawfulness is minor or not deliberate. On these facts, however, the employee knew that the material was private and confidential, had been obtained without consent, and had been unlawfully obtained. His asserted union purpose did not bring its retention within statutory protection.

4. The Tribunal had failed in its conclusions to address that decisive feature of the reason for dismissal. Its conclusion of automatic unfair dismissal was therefore set aside. Its finding of ordinary unfair dismissal under section 98(4) of Employment Rights Act 1996 also fell, since it depended entirely upon the erroneous section 152 conclusion.

5. The claims were remitted for rehearing. Although dismissal of the section 152 claim by substitution was close to inevitable, there remained a small possibility of a different outcome on remission.

• Employment Appeal Tribunal: Allowed the employer’s appeal, set aside the Employment Tribunal’s findings of automatic and ordinary unfair dismissal, and remitted the claims for rehearing.
• Employment Tribunal: Held that dismissal was automatically unfair under section 152 of Trade Union and Labour Relations (Consolidation) Act 1992 and unfair under section 98(4) of Employment Rights Act 1996. Reasons were sent to the parties on 9 December 2015.