Metrolink RATPDEV Ltd v Morris was a case about section 152 of TULRCA – dismissal for taking part in trade union activities is automatically unfair.

The claimant was a Workers of England Union representative at the company. In June 2014, as part of a restructuring exercise, 14 employees were evaluated at an assessment day, to determine whether they should be offered one of 12 customer service team leader positions. Of the five candidates who failed the assessment, four were members of the claimant's trade union. A formal collective grievance about the assessment exercise, raised by the claimant in his capacity as union rep, was resolved at a meeting in July.

In August 2014 someone took a photograph of confidential notes about the assessment exercise in a diary belonging to the claimant's line manager, without his knowledge or consent. One of the four who failed sent a copy of the image to the claimant, apparently at the claimant's request.

An investigation was conducted and ultimately the claimant was dismissed for gross misconduct because he had stored and shared confidential information. The Employment Tribunal decided that the claimant was taking part in trade union activities by storing the information and raising it on behalf of members and that therefore his dismissal was automatically unfair under section 152.

The EAT overturned the Tribunal's decision. Not every act carried out for trade union purposes falls within the scope of section 152, as the ACAS Code of Practice on time off for trade union activities makes clear. Dismissal for the retention of unlawfully obtained information is not generally protected. If the unlawfulness played a small part in union activities, or if the element of unlawfulness was not deliberate, then storing and sharing unlawful material might not lead to the loss of section 152 protection. But in this case the reason for the dismissal was that the claimant had stored and used or disseminated information that was private, confidential and had been taken from the manager without his permission – in effect, stolen.

The chronology was also important – the grievance about the restructuring had been resolved before the claimant received and stored the information. The claimant was well aware that the material that he had received was confidential and he knew how seriously the company regarded confidentiality – just before the disciplinary investigation leading to his dismissal there had been an inquiry into Twitter postings from his wife containing information sensitive to the business, in respect of which the claimant had (the Tribunal found) not been entirely exculpated.