15 June 2018

Employees engaged in relevant trade union activities (as defined) are given specific protection within Scots employment law. That extends to protection against suffering a detriment and in relation to dismissal.

In Morris v Metrolink the Employment Tribunal had to consider a tricky issue involving a trade union official, the Claimant, who was given leaked confidential information about internal processes in connection with the Respondent.

The Respondent was undertaking a restructuring exercise. This involved an assessment centre. Five employees were formally put at risk of redundancy. Four of the five were trade union members. The Claimant was given a photograph of a diary entry made by one of the managers which referred to one of the candidate's performance.

The Claimant informed HR of the position and raised a collective grievance.

The Respondent decided to take action against the Claimant for storing and sharing confidential information. He was ultimately dismissed for gross misconduct.

The Claimant argued that his dismissal was unfair (on normal principles) but also that it was automatically unfair on account of his undertaking relevant trade union activities at the time.
The question in relation to the latter claim was whether the use of leaked confidential information amounted to 'trade union activities' for the purposes of an automatic unfair dismissal claim for taking part in trade union activities.

At first instance, the Employment Tribunal upheld both claims, but on appeal the Employment Appeal Tribunal decided that the protection in respect of relevant trade union activities did not extend to the wrongful/unlawful retention of confidential information.

The Court of Appeal reconsidered the matter and upheld the Employment Tribunal’s approach to this issue. The central question was whether the Claimant’s conduct in keeping the photograph was fairly separable from the context in which it occurred - the collective grievance. There was no suggestion that the Claimant had acted in an underhand manner. The Claimant had asked for the document to look into a potentially serious irregularity affecting the interests of trade union members who were at risk of dismissal. The Claimant had not circulated the document and he was up front with HR as to his knowledge of it.

The Court of Appeal noted that in day to day industrial relations leaked information is often discovered. The issue before the Court was not about the ethics of dealing with the information but whether the information fell within the statutory term. Ultimately the Court found that the limited use to which the information was put, its direct relevance to trade union members’ interests and all the circumstances meant that it was not outwith the scope of trade union activities and so the Claimant’s dismissal was automatically unfair.

This is a useful reminder of the specific protection given to those engaging in relevant trade union activities and the way in which this is interpreted in practice. The judgment looked at the issue in a common sense practical way. Care is needed when dealing with issues in this area and as ever expert employment law advice is recommended.

The full judgment can be read here.

To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.