Morris v Metrolink RATP DEV Ltd

Protection against automatic unfair dismissal for trade union activities is not lost merely because conduct in that context was ill-judged or unreasonable. It may be lost where the conduct is genuinely separable from the union activity and can fairly be treated as the distinct reason for dismissal. The description of conduct as wholly unreasonable, extraneous or malicious identifies the character of the distinction but is not a rigid formula. Limited use of leaked workplace information in a collective grievance, concerning the interests of represented employees, did not cross that boundary. The findings of automatic unfair dismissal under the Trade Union and Labour Relations (Consolidation) Act 1992 and ordinary unfair dismissal under the Employment Rights Act 1996 were restored.

The Employment Tribunal found that the Appellant had been dismissed because he retained a copy of a manager’s work diary and referred indirectly to information from it in a collective grievance. It upheld claims of automatic unfair dismissal for trade union activities and ordinary unfair dismissal.

The Employment Appeal Tribunal allowed the employer’s appeal, holding that the Employment Tribunal had failed to consider whether the conduct was wrongful or unlawful conduct separable from the trade union activity. It declined to substitute its own decision because remission might produce a different outcome. The central issue before the Court of Appeal was whether the Appellant’s conduct was sufficiently separable and culpable to remove the statutory protection.

Lord Justice Underhill gave the judgment, with Lord Justice Bean and Lord Justice Irwin agreeing.

1. Disposition. The appeal was allowed. The Employment Tribunal’s findings of automatic unfair dismissal under section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 and ordinary unfair dismissal under section 98 of the Employment Rights Act 1996 were restored, together with the judgment on remedy.
2. Applicable principle. The approach in Lyon v St. James Press Ltd [1976] ICR 413 was the clearest statement of the governing principle. Conduct occurring during trade union activities may be treated as outside section 152 where it is genuinely separable from those activities and can fairly be regarded as the distinct reason for dismissal. The expression wholly unreasonable, extraneous or malicious captured the distinction, but was not a definitive formula.
3. The statutory protection must not be undermined by treating every error of judgment, ill-judged act or lapse from the highest standards as separable misconduct. Bass Taverns Ltd v Burgess [1995] IRLR 596 illustrated that even over-the-top rhetoric could remain protected. The Court disagreed with Mihaj v Sodexho Ltd [2014] UKEAT 0139/14/2305 to the extent that it suggested a materially different approach from Lyon and Bass.
4. Application. The Appellant had not copied the diary, had received the copy from another person, sought it because it appeared to reveal an irregularity affecting union members, approached human resources, made no further copies, and referred to the information only indirectly in a grievance to the employer. Any fault was limited and was not sufficiently separable or culpable to remove section 152 protection. Azam v Ofqual [2015] UKEAT 0407/14/1903 was rightly decided but was factually different because it involved deliberate disclosure of confidential information in breach of an express embargo.
5. The Employment Tribunal had failed expressly to address the separability issue, so the Employment Appeal Tribunal correctly identified an error of law. The principles in Jafri v Lincoln College [2014] ICR 920 explained why substitution was inappropriate where more than one outcome remained possible. On the primary facts, however, the Court of Appeal could determine that the statutory protection applied. The possible data-protection issue had no material bearing on that conclusion.

1. Court of Appeal (Civil Division) — Appeal allowed and the Employment Tribunal’s findings of automatic and ordinary unfair dismissal, together with the remedy judgment, restored: [2018] EWCA Civ 1358.
2. Employment Appeal Tribunal — On 15 December 2016, Slade J allowed the employer’s appeal, finding that the Employment Tribunal had failed to apply section 152 and declining to substitute a dismissal of the claim.
3. Employment Tribunal — Found that the Appellant had been automatically unfairly dismissed for taking part in trade union activities and had also been ordinarily unfairly dismissed.