Protection from dismissal on grounds of trade union activities - how far does it go?
Author: Darren Newman
Consultant editor Darren Newman looks at a recent case in which the Court of Appeal had to consider if, in sharing information from a manager's desk diary, a trade union rep had acted outside the scope of trade union activities for the purposes of the automatically unfair dismissal protection afforded by s.152 of the Trade Union and Labour Relations (Consolidation) Act 1992.
An automatically unfair dismissal is one in which the reasonableness of the employer's conduct is irrelevant. The reason for the dismissal is in itself unlawful and the employer simply cannot argue that it is fair. There are, in theory, a large number of categories of automatically unfair dismissal - every time an employment right is created, provisions are also introduced outlawing any dismissal for exercising that right. To give a few examples, it is automatically unfair to dismiss an employee for making a flexible working request, acting as a trustee of an occupational pension scheme or standing for election as an employee representative. In practice, of course, claims of this sort are rarely seen. After all, why would an employer object to an employee doing something so innocuous?
However, in the realm of trade union activities, the issue is much more likely to arise. There is an element of tension in even the most constructive relationship between a trade union and employer, and the potential for conflict arising between individual union representatives and their managers is always present. This means a key protection for those representatives is that it is automatically unfair to dismiss an employee for taking part in trade union activities.
But what if the employer feels it has legitimate grounds to complain about the specific way in which the union representative has approached their duties? The Court of Appeal looked at this issue in Morris v Metrolink RATP Dev Ltd [2018] IRLR 853 CA. Mr Morris was a union rep who was acting for members raising a grievance connected with a restructuring exercise. He sought to make representations based on a copy of a page from his manager's desk diary, which he said contained entries inconsistent with the position put forward by the employer. The employer was concerned that this copy had been obtained without the manager's consent and dismissed Mr Morris for retaining and using what it regarded as unlawfully obtained material.
The employment tribunal found that the dismissal was automatically unfair, but the Employment Appeal Tribunal (EAT) held that it had failed to consider properly whether or not the retention of unlawfully obtained material was within the scope of protected trade union activities.
The Court of Appeal disagreed and has restored the tribunal's decision. Basically the Court did not take such a dim view of the employee's conduct as the EAT. There was no suggestion that Mr Morris had himself been responsible for obtaining the copy of the page from the diary and the information set out in the document was work related rather than personal. He had disclosed the contents to HR, had not made other copies or circulated the document to anyone else, and had used the document entirely in the course of his activities as a union representative. The Court held that there were no grounds to hold that his conduct could be separated from his union activities - the tribunal was not, after all, conducting an ethics seminar.
However, it was accepted by the Court that there could indeed be circumstances in which an employee's conduct in the course of trade union activities can be separated from the trade union activities themselves. In Azam v Ofqual EAT/0407/14, for example, the EAT held it was not automatically unfair to dismiss an employee for disclosing confidential information to union members - even though that was clearly something she did as a trade union representative. The disclosure was in express breach of the union's recognition agreement with the employer and the EAT held that it was not within the scope of legitimate union activities.
It is difficult to see exactly where the line is to be drawn between conduct that the employer can and cannot take into account. The problem is not confined to trade union activities; similar issues have arisen in victimisation cases brought under the Equality Act 2010. An employer may find the way in which the employee has made an allegation of discrimination to be objectionable, but in most cases that will not prevent the allegation from being a protected act. An employer facing a victimisation complaint cannot rely on any general defence of reasonableness or justification. Nevertheless, it was held by the EAT in Martin v Devonshires Solicitors EAT/0086/10 that an employee who was dismissed for making allegations of sexual harassment had not been victimised. The allegations had been the result of a mental health condition leading to delusions and it was clear that the employee had no insight into the nature of her condition, with the result that the allegations were likely to be repeated in the future. The EAT held that these circumstances were "properly separable" from the allegations themselves and were the true reason for her dismissal.
In whistleblowing cases it may also be that the way in which the employee has behaved in making a protected disclosure can be separated from the act of disclosure itself. In Panayiotou v Kernaghan and others EAT/0436/13 the employer was able to defend a whistleblowing case by relying in part on the relentless and "exasperating" way in which the employee made repeated allegations of wrongdoing with the result that dealing with his complaints took up a huge amount of management time.
What is lacking from these cases is any unifying principle explaining precisely when an employer can take action against an employee for the way in which they have gone about exercising a legal right. But perhaps it is better this way. The fact that there may be exceptional cases in which a tribunal is persuaded that aspects of the employee's conduct fall outside the scope of the law's protection should not lull employers into a false sense of security. Trade union representatives - and indeed individuals raising discrimination or whistleblowing complaints - may well be seen by the employer as an irritant. If a general defence of justification existed in these cases, employers might too easily persuade themselves that it applied. As the law stands, an employer must make the case to the tribunal that the conduct was so serious that it could not be ignored.
