Trade Union representative WAS unfairly dismissed

The following article was in People Management on 18 June 2018 and was written by Maggie Baska.
In their duties as Union Reps, the Reps are often handed information. In this case, a rep used the information to raise a collective grievance, he was then dismissed. He raised an unfair dismissal claim which he won, the original EAT overturned the decision, but the Court of Appeal has now overturned this decision and goes back to the decision that he WAS unfairly dismissed.

Judges find it is not uncommon for reps to be handed leaked data in the course of their duties.

A trade union representative who was fired for using leaked information to raise a collective grievance has won his appeal to the Court of Appeal, overturning an earlier Employment Appeal Tribunal (EAT) decision. 
The court upheld the original tribunal decision in Stephen Morris’s case, finding he had been unfairly dismissed during the course of his duties as a trade union representative.

Morris was employed by Metrolink – the operator of tram services across the Manchester area – as a supervisor and acted as the north-west England representative of an independent trade union called the Workers of England Union.

Metrolink underwent a restructuring exercise in June 2014, under which the number of supervisors would be reduced. The judgment noted that all employees within the scope of the exercise participated in “what is called in HR jargon an ‘assessment centre’”. Line managers were not to be involved in the process.

As a result of the assessment, five supervisors were put at risk of redundancy – four of which were already members of the union while the fifth joined shortly after.

In August, a colleague told one of the “unsuccessful” supervisors that an employee had a photograph of part of a work diary kept by Graham Lord-Jones, a Metrolink line manager.

The diary contained notes of a conversation between Lord-Jones and his supervisor about how the candidates had performed following the assessment centre, including adverse comments about the five supervisors.

Morris was told about the photograph and asked the supervisor to email him a copy. He went to Metrolink’s HR department to ask why Lord-Jones had this information and said the comments in the diary were detrimental to his members.

Later, Morris sent the HR manager a formal grievance and said the union wished to raise the issue of Lord-Jones’ diary.

The HR manager then told Lord-Jones that Morris had a copy of part of his work diary. Lord-Jones confirmed he had not given permission to copy his notes.

The HR manager decided there should be an investigation. The judgment noted disciplinary proceedings were initiated against Morris on the grounds he had stored and shared “private and confidential information that is the property of a manager within [Metrolink]”.

Morris was dismissed in December 2014. He brought his case to the Manchester Employment Tribunal.

Employment judge Slater ruled that neither Morris’s initial receipt of information nor its mentioning in the grievance amounted to gross misconduct. She awarded him £39,000 in compensation.

Metrolink appealed the tribunal’s ruling to the EAT. Justice Slade allowed the appeal as the information retained and shared by Morris was “private, confidential and unlawfully obtained”.

The Court of Appeal last week unanimously upheld Morris’s appeal. Lord Justice Underhill remarked in his judgment, with which Lord Justice Bean and Lord Justice Irwin agreed, that the core issue to consider was whether Morris’s conduct in keeping the photograph was separable from the grievance in which it occurred.

The court found Morris had not acted or obtained the information in an “underhand manner”, adding it was not uncommon for union representatives to receive leaked information.

Lord Justice Underhill noted he was not interested in the “ethics seminar” offered by the lower court and ruled Morris was unfairly dismissed based on the case established in the primary findings.

“Clearly this decision is going to be of interest to any organisation which has recognised unions,” said Jane Fielding, partner and head of employment at Gowling WLG. “It’s not saying that employees who commit misconduct while engaging in trade union activities can never be dismissed or disciplined. But the employer has to be able to show that it is the misconduct itself, not the trade union activities, which are the reason for the disciplinary action being taken.”

But Melanie Stancliffe, partner at Irwin Mitchell LLP, told People Management: “This case was unique and specific because the employee was doing this in the case of their trade union actions. I think the employee was saved by the fact that this was the case.”

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