18 July 2018

Trade union representative unfairly dismissed for using leaked confidential information

Why care?

Employees are protected from dismissal for independent trade union activities. The dismissal is automatically unfair where this is the principal reason for the dismissal.

In this case, the Court of Appeal decided that a trade union representative was protected from dismissal when he had received and used leaked confidential information in the course of his activities.

The case

The Claimant worked for Metrolink for 14 years and was also a trade union representative for the Workers of England Union.

In June 2014, Metrolink placed five supervisors at risk of redundancy. All were, or became, members of the Claimant's union. One told the Claimant he believed the assessment process was unfair and told him he had a photo of a page of a manager's diary which would prove it. (The diary contained personal comments about those assessed and the outcome of the assessment. Although it was not known who had taken the photo or when, the Claimant knew it had been obtained without the manager's consent.) He emailed a copy of the photo to the Claimant, who showed it to a member of the HR team and then referred to the diary page in the collective grievance he raised on behalf of his members.

The Claimant was dismissed for gross misconduct for "handling, receiving and storing stolen, private and confidential information that was the property of a manager".

The Employment Tribunal held that the dismissal was unfair as it was outside the range of reasonable responses, but that he had also been automatically unfairly dismissed, as his storing and using the information on behalf of members was part of the activities of an independent trade union.

The EAT reversed that decision, holding that not all acts carried out by someone as the activity of a trade union is protected if it is "wholly unreasonable, extraneous or malicious".

The Court of Appeal (Underhill LJ) allowed the Claimant's appeal.

The Claimant had had nothing to do with the copying of the manager's diary, and asked for a copy when he learned of it because it appeared to show serious flaws in the assessment process which affected trade union members. He had acted openly by telling HR that he had a copy.

It was not unusual, said the Court of Appeal, for a trade union rep to receive leaked information obtained without consent. The Court "was not involved in an ethics seminar", and the relevant questions was whether the limited way in which he had used the information (which it was in the interests of his members to do) was so far outside good industrial relations practice as to take his conduct outside "trade union activity" as defined in the relevant legislation. The Court concluded it was not. The important protection which Parliament has given employees would be undermined if "a lapse from the highest standards" meant that conduct fell outside the definition. At most, the Claimant should have received a warning for storing and not deleting the information.

What to take away

The case is significant because it confirms that trade union activity will be protected unless it is "wholly unreasonable" – a high threshold giving greater protection to employees.

The case also suggests that employers should be careful not to overact to data breaches by categorising them as gross misconduct. However, given the trade union angle here, it's possible the result would have been different had he not been a representative. It is also possible that (depending on the precise information) employers may be anxious about the GDPR implications of any leaks of confidential information.

The Court of Appeal does not give any guidance as to when an employee would be expected to delete confidential information, and that will be dependent on the facts of future cases.

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