November 20, 2018

November 20, 2018

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November 19, 2018

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UK trade union representative unfairly dismissed despite unlawful misuse of confidential information. Really?

Apparently, said the Court of Appeal, the unlawful retention and circulation of confidential material by a union representative “was not a sufficient departure from good industrial relations practice” to justify his dismissal, a conclusion which initially seems little short of perverse, let alone an alarming comment on the state of industrial relations in the UK’s unionised workplaces. But all is not as it seems.

The law here is Section 152 of the Trade Union Labour Relations Consolidation Act 1992. This makes automatically unfair the dismissal of an employee for taking part in the activities of an independent trade union at an appropriate time. The law reports going back 40 years are littered with cases teetering uncertainly on the sometimes very thin line between taking part in trade union activities on the one hand and being a pain in the neck on the other. Now Morris -v- Metrolink RATP this month provides another example of how close a judgment an employer must make.

Mr Morris was a union representative engaged in consultation on behalf of his members in relation to a redundancy selection exercise. There was an assessment process which one of Morris’s members, Mr A, failed. That left him exposed to losing his job. By means which probably weren’t wholly proper but didn’t involve Morris, A obtained a copy of some notes of the assessment process made by one of the managers, L. He was not one of the assessors for the redundancy selection and so on the face of it L had no real reason to have that information. Mr A showed that copy of the notes to Morris as his union representative, complaining that they were unfairly prejudicial to him in the redundancy selection exercise.

Morris took the copy notes to the attention of his HR Director with an eye to a meeting with her about what they meant for A and others. Instead, he found himself summarily dismissed for the unlawful storage and circulation of confidential information, being the notes made by L.

There was no real argument open to Morris that he believed that he or A was entitled to possession of those notes or that they were not confidential. In the strictest of terms, the HRD’s allegation was therefore probably right. However, was it enough to deny Morris (there is no word in the Judgment as to what befell A) the protections of Section 152? The Employment Tribunal said not, but the EAT was very clear that the retention of unlawfully-obtained information could not possibly benefit from statutory protection.   The Tribunal should therefore think again, said the EAT, but ideally come to a different answer.

Before the case got back to the Tribunal, however, the Court of Appeal intervened. It had a canter through some earlier authorities, including the marvellous Burgess -v- Bass Taverns in 1995. There the union rep stood up in a company presentation to new joiners and to the no doubt considerable chagrin of the managers present, explained “You will get threatened and if you get hurt it will the union who will fight for you, not the company. At the end of the day the company is concerned with profits and this comes before everything else”. Agreeing that Mr Burgess had been automatically unfairly dismissed under what is now Section 152, the Court of Appeal in that case said that it would take conduct which was malicious or wholly unreasonable (i.e., as opposed to just ordinarily unreasonable) to forfeit the Section 152 protection. Burgess’ conduct was just rhetoric and hyperbole of the sort you might see at any union recruitment meeting.

Now apply that to the actions of Mr Morris. Yes, he knew that neither he nor A had any right to those notes. But against that, he had not obtained them unlawfully himself, he had used them only at the reasonable request and for the reasonable purposes of a union member he represented, he told HR about them in a prompt and transparent manner, he didn’t show them to anyone else and the information was not actually personal or confidential to L but to A, who was clearly happy for him to see it. In a perfect world, perhaps Morris should have grilled A on where the notes had come from and if not reassured, declined to look at them. But the Court of Appeal was not concerned about a perfect world – we are “not here concerned with an ethics seminar“, it said. It may also be relevant that the notes made by L would probably have been obtainable by A through a data subject access request or the litigation disclosure process in due course, and so it was hardly stuff which Morris could never otherwise have seen or used anyway.

Lessons for employers:

  • Taking part in trade union activities does give employees a reasonably wide licence to engage in low-level misconduct, errors of judgement and unreasonableness in the course of doing so without thereby losing their statutory protection against dismissal but it does not operate as a cloak or an excuse for conduct which would ordinarily justify dismissal.
  • So if your union representative is acting in a way which irritates you and seems determinedly contrary to the best interests of the business, resist. It takes really quite overt and serious and intentional misbehaviour to justify a dismissal in those circumstances.
  • The Court of Appeal thought that warning Morris would have been enough, but what is not explained in the decision is why that wouldn’t then count as subjecting him to a detriment on the grounds of his trade union activities in breach of Section 146 of the same Act. Unless you really feel you have to say something, therefore, it may be better just to bite your lip or as a minimum, have an informal discussion with him which (a) cannot reasonably be seen as a detriment by the employee but (b) could make it harder for him to claim to be within the Section 152 protection were he to do it again.
© Copyright 2018 Squire Patton Boggs (US) LLP

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About this Author

David Whincup, Employment Attorney, Squires Patton Boggs Law Firm
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Following ten years at a Magic Circle firm, David has been Head of our London Employment practice since 1994. His expertise gained from twenty-five years as a specialist Employment Law practitioner covers a wide variety of employment-related issues, including in particular individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding...

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