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Dismissal unfair despite misuse of information

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Would the use of leaked information fall within the scope of 'trade union activities' for the purposes of a claim of automatically unfair dismissal for taking part in trade union activities (s152 ERA)?

Yes, held the Court of Appeal, in Morris v Metrolink RATP Dev Limted.

Mr Morris was a trade union official. Metrolink underwent a restructuring exercise. This involved an assessment centre, following which 5 employees were put at risk of redundancy. Four were union members. Mr Morris received a photograph of a diary entry made by a line manager who should not have been involved in the assessment, referring to the candidate's performance. He informed HR and then raised a collective grievance. He was dismissed for storing and sharing confidential information. Mr Morris brought claims of ordinary unfair dismissal and automatically unfair dismissal.

The tribunal upheld both claims, but the EAT allowed Metrolink's appeal, finding that the protection for trade union activities did not extend to the wrongful or unlawful retention of confidential information.

The Court of Appeal upheld Mr Morris's appeal. The central issue was whether his conduct in keeping the photograph was fairly separable from the context in which it occurred - the collective grievance. There was no suggestion that he had acted in an underhand manner. He had asked for a copy to look into a potentially serious irregularity affecting the interests of his members, he had not circulated it, and he had informed HR of it. It is not uncommon for union representatives to received leaked information. Although a "strict moralist" might decline to receive it, the Court was not concerned with "an ethics seminar". The limited use the information was put to, which directly affected the members' interests, did not take it outside the scope of trade union activities.

Thanks to James English of Hempsons solicitors for preparing this case summary.