Automatically unfair dismissals – be aware of the broad scope of trade union activities
Background
Without wanting to scare you, an automatically unfair dismissal is something to be worried about. Unlike your common or garden unfair dismissal, an automatically unfair dismissal, generally, can be brought by an employee even when they do not have two years’ service. In addition, there are occasions in which an automatically unfair dismissal does not have the same cap as unfair dismissal claims (currently at £83,682) i.e. there may be no compensatory cap. Perhaps the biggest difference between normal and automatic unfair dismissal is that dismissal for an inadmissible reason is always deemed to be unfair and there is no room for an employer to argue a dismissal was reusable. All in all, it can pose a serious threat to your business.
An automatically unfair dismissal occurs when an employee is dismissed for one of the inadmissible reasons. This is a fairly sizable list, but the headliners of the group include dismissal for: whistleblowing, family reasons, health and safety, union membership and/or activities, or asserting statutory rights. In the case of Morris v Metrolink, the issue concerned the claimant’s actions as a trade union official. The court had to decide whether Mr Morris’s actions fell within the definition of ‘trade union activities’ and, as a result, meant that his dismissal was automatically unfair.
Mr Morris was both a union representative for the Workers of England Union (WEU) and for the respondent, Metrolink. In 2014, Metrolink were undergoing a restructuring exercise in which their staff members were asked to undertake assessments as part of that restructure process. Of the 5 members of staff who failed, 4 belonged to WEU. These 5 candidates were put at risk of redundancy.
Mr Morris’s line manager was not a party to any of the redundancy assessments: he was not an assessor and had no link to the candidates. However, he was given information relating to the performance of the candidates in the assessments, and made a note of this within his work diary. A photo of this information was subsequently sent to Mr Morris anonymously.
Because of the nature of this leaked information, Mr Morris raised a collective grievance with Metrolink’s HR team because he believed that the comments in his line manager’s diary were detrimental to the candidates. This led to disciplinary proceedings against Mr Morris who was summarily dismissed for gross misconduct on the grounds he was found to have stored and circulated confidential information.
At the Employment Tribunal, the judge concluded that Mr Morris was dismissed because he was participating in ‘trade union activities’ and so his dismissal was automatically unfair. This was appealed, and at the EAT this decision was overturned.
The EAT noted that union officials lose protection where they act unreasonably in their functions. They also believed that dismissal for the retention of unlawfully obtained, ‘leaked’, information should not be protected. The EAT subsequently remitted the case to the tribunal for reconsideration, adding that the chance of finding that Mr Morris’s actions constituted ‘trade union activities’ was “very small”.
Mr Morris appealed the EAT’s decision. The Court of Appeal restored the decision of the ET that Mr Morris’s dismissal was unfair. The reasons for this were that: Mr Morris was simply a recipient of the information and did not leak it himself; the reason for keeping a copy was because it revealed an irregularity in the assessment procedure (which affected his union members); he told HR immediately and so did not act in an underhand manner; he did not circulate the information to anyone else; the information was merely sent to Metrolink itself; and the diary from which it was copied was a work diary – the information related to the WEA members and it was their interests that were affected rather than those of the business. As a result, Mr Morris’s actions were not a “sufficient departure from good industrial relations practice” and thus fell within the scope of ‘trade union activities’.
What does this mean for you or your business?
The Court of Appeal has created a wider definition of what might fall under ‘trade union activities’. If an employee acts in a way that would normally be considered bad practice, unreasonable, or just generally a bad idea that action may be afforded automatic unfair dismissal protection if it occurs in tandem with their trade union activities. That said, an employee’s union membership should not provide an excuse for conduct which another non-union rep worker would be dismissed for.
What should you be doing now?
Ensure that you do not react too hastily to dismiss, especially in situations where the dismissal might be automatically unfair. As with all situations leading to a dismissal, make sure that the reason for the dismissal is for one of the five potentially fair reasons: conduct; capability; redundancy; illegality or some other substantial reason (SOSR).
With regards to trade unions and trade union membership, get a read on any situation that arises and don’t take rash decisions. Consider why the employee might have acted the way that they did. If you can separate their actions from the trade union activity, you may be safe to consider disciplinary action. However, if it the disciplinary action is linked in any way to their trade union membership, proceed cautiously. Regardless of the circumstances which led to the action, consider an informal chat with the employee. If you can explain why a particular part of their behaviour is wrong, they might not be awarded the same protection later on.
Recommended Reading
The full judgment from the Court of Appeal case can be read HERE.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.