The dismissal of a trade union representative for keeping private information that had been unlawfully obtained was not automatically unfair.

The Facts

Employees who take part in trade union activities benefit from additional protection from dismissal. Where an employee is dismissed for taking part in trade union activities, this protection means that the dismissal will normally be automatically unfair.

Mr Morris, who was employed by Metrolink, was a trade union representative. In the context of a restructuring, another employee told Mr Morris that he had a copy of a page from a manager's private diary, which contained notes about an employee assessment exercise. Mr Morris, in his capacity as a trade union representative, asked for a copy of the diary page, and he kept it and used it in the context of a grievance brought in relation to union members. Mr Morris knew that this information had been obtained without the consent of the manager.

Mr Morris was dismissed for gross misconduct because he had stored and shared confidential information. An employment tribunal found that he had been taking part in trade union activities by storing the information and using it on behalf of members, and that he had therefore been dismissed for taking part in trade union activities, and that the dismissal was therefore automatically unfair.

The EAT overturned this decision. Existing case law makes it clear that not all acts carried out by someone as an activity of a trade union will be protected: "wholly unreasonable, extraneous or malicious acts done in support of trade union activities might be a ground for a dismissal which would not be unfair." Here, the information retained and stored by Mr Morris was information that he knew to be private, confidential and unlawfully obtained. The judge held, as a matter of principle, that this dismissal should not be automatically unfair. The case was remitted to a tribunal to decide if it was an "ordinary" unfair dismissal.

What does this mean for employers? 

This is not new law. Employers must still be very cautious when dismissing an employee in the context of their performing trade union activities. Whether or not the dismissal will be protected will turn on the facts of the particular case. If unlawfulness is only a small part of the activities in which the employee has engaged on behalf of a trade union, or if the unlawfulness element is not deliberate, the dismissal may still be automatically unfair.

Metrolink RATPDEV Ltd v Mr S Morris