24th January, 2017

Limits of Trade Union Protection?

Metrolink RatpDev Ltd v Stephen Morris

The Employment Tribunal determined the claimant had been dismissed contrary to section 152 of TULR(C)A. The fact of dismissal was admitted, the employer asserted the reason for dismissal was conduct. The conduct in question related to the receipt and use of confidential information which had been copied from a manager’s diary without his consent. The claimant attempted to refer to the information when raising a collective grievance.  It was not suggested that the claimant had himself been responsible for the initially illegitimately obtaining the information. The Employment Tribunal concluded that in referring to the material, and placing reliance upon it, the Claimant’s conduct was protected by section 152. On appeal, Ed Morgan argued the Employment Judge had fallen into error; confusing the issues of "conduct" with "context". Slade J agreed. She concluded that use of the information for trade union purposes did not enjoy the protection of the Act. Preserving the findings of fact made by the Employment Tribunal, Slade J remitted the case back to a differently constituted Tribunal to reconsider the section 152 question and made a costs order against the claimant. In doing so, she observed: 

"In the circumstances of this case and on the findings of fact in the conclusions section of this Judgment, which must in any event stand, this case comes very close to a case in which on a proper application of the law there can be no other possible answer than to say that the reason for dismissal was not for the Claimant taking part in trade union activities but for the gross misconduct in retaining unlawfully obtained confidential and private information. I am on the verge of making an order for substitution and it is difficult to see in the circumstances of this case how more than one outcome on a proper application of the law is possible.  However, there would be a very small percentage chance that the outcome would be different on remission... However, I would like it noted in the Judgment that if on a remitted hearing the Claimant fails in his claim the Tribunal should consider very carefully whether a costs order should be made against him."



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