Morris v Metrolink Ratp Dev Ltd

The Court of Appeal allowed the claimant's appeal against the Employment Appeal Tribunal and restored the Employment Tribunal's finding that the dismissal was both automatically unfair under section 152(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 and unfair under section 98 of the Employment Rights Act 1996. The court applied the established Lyon/Bass line of authority and held that conduct which occurs in the course of trade union activities will only fall outside the protection of section 152 where the conduct is genuinely separable from the trade union activity because it is, for example, wholly unreasonable, malicious or otherwise sufficiently culpable. The court concluded on the facts found by the Employment Tribunal that the appellant, who was the recipient of a surreptitious copy of a manager's work diary and who used it in a limited way to raise a collective grievance on behalf of members and reported the matter to HR, did not behave with such grave culpability as to remove the protection of section 152. The Employment Tribunal's findings that dismissal was also unfair under section 98 were accordingly restored.

Background and parties:

• The appellant, employed by the respondent Metrolink RATP DEV Ltd from 2000 until dismissal on 17 December 2014, was a trade union representative for the Workers of England Union. The respondent operated the Metrolink system in Manchester. The appellant was dismissed after disciplinary proceedings arising from his retention of, and reference to, a copy of a manager's work diary which had been copied without the manager's consent.

Procedural posture:

• The Employment Tribunal (Manchester) found the dismissal was automatically unfair under section 152(1) TULRCA 1992 (trade union activities) and unfair under section 98 ERA 1996. The Employment Appeal Tribunal (Slade J) allowed the employer's appeal, concluding the Employment Tribunal had failed to consider whether the misconduct (retention of unlawfully obtained confidential information) fell outside the protection of section 152, and remitted the case. The Court of Appeal heard the claimant's appeal from the EAT decision.

Nature of claim and issues:

• The claim was for unfair dismissal: (i) automatic unfair dismissal under section 152(1) TULRCA 1992 for taking part in trade union activities; and (ii) ordinary unfair dismissal under section 98 ERA 1996. The central issue was whether the appellant's storing and limited sharing of unlawfully obtained confidential information constituted conduct separable from trade union activities so as to deprive him of section 152 protection (the Lyon/Bass enquiry). Related issues were whether the employer genuinely and reasonably believed the misconduct had occurred and whether dismissal fell within the band of reasonable responses.

Court's reasoning and conclusion:

• The Court of Appeal accepted that the Employment Tribunal had not explicitly analysed the separability point, so the EAT's criticism of that omission was well-founded as a matter of law. However, read as a whole and on the primary facts found by the Employment Tribunal, the appellant had merely been the recipient of a surreptitious copy, had sought the copy because it appeared to show an irregularity affecting his members, had reported the matter to HR shortly after receipt, had not circulated the copy further and had only referred indirectly to the information in a collective grievance letter. Those factual findings showed at most limited culpability.
• The court applied the Lyon/Bass principle that only conduct which is genuinely separable from trade union activities (for instance wholly unreasonable, malicious or dishonest conduct) will be treated as a distinct reason for dismissal. On the established facts the appellant's conduct did not cross that threshold and remained within the scope of trade union activities protected by section 152. For the same reasons the ET's decision on ordinary unfair dismissal under section 98 was restored.

Remedy and wider context:

• The Court restored the ET's decision, thereby reinstating the prior remedy determination (the judgment records that at remedy the appellant was awarded compensation of about £39,000). The court emphasised the need not to undermine statutory protection for trade union activities by treating ordinary errors of judgment as removing that protection.

The Court of Appeal allowed the appellant's appeal. The court held that although the Employment Tribunal's written reasons did not expressly analyse whether the appellant's conduct was separable from his trade union activities, the primary factual findings showed only limited culpability. On those facts the storing and limited reference to the unlawfully obtained diary fell within the scope of trade union activities protected by section 152(1) TULRCA 1992; the ET's findings of automatic unfair dismissal under section 152 and unfair dismissal under section 98 ERA 1996 were therefore restored.

Employment Tribunal (Manchester) — judgment in favour of claimant on liability (automatic unfair dismissal under section 152 TULRCA 1992 and ordinary unfair dismissal under section 98 ERA 1996), reserved Reasons sent 9 December 2015. Employment Appeal Tribunal (Slade J) — allowed employer's appeal and remitted the case (decision dated 15 December 2016). Court of Appeal — allowed claimant's appeal and restored the Employment Tribunal's decision ([2018] EWCA Civ 1358, 14 June 2018).