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In Morris v Metrolink RATP DEV Ltd [2018] EWCA Civ 1358  the Court of Appeal upheld the decision of an Employment Tribunal that the dismissal of a trade union official for carrying out trade union-related activities was automatically unfair, even though the relevant official had handled unlawfully obtained confidential information.

The factual background of Morris v Metrolink RATP DEV Ltd

Mr Morris worked for Metrolink RATP DEV Ltd (“Metrolink”) from 2000, latterly as a supervisor. He was the North West England representative of a small independent trade union which Metrolink informally recognised (the “WEU”).

In June 2014 Metrolink conducted staff assessments as part of a restructuring exercise. Five candidates failed the assessment, of whom four were WEU members. During the assessment process Mr Morris’ line manager, Mr Lord-Jones, was provided by the customer services director with information about the performance of the candidates. Mr Lord-Jones recorded this information in his diary. At a later date an unidentified colleague took photographs of the relevant information in Mr Lord-Jones’ diary and these were sent to Mr Lord-Jones. Mr Morris subsequently sent these images to a member of the HR team, stating that he wanted a meeting with the HR director to discuss the entries as he felt that they were disadvantageous to the unsuccessful candidates.

On 19 September 2014 Mr Lord-Jones confirmed to the Human Resources director that he had not given anyone permission to copy or disclose the contents of his diary. An investigation was therefore launched and the conclusion of the investigation was that disciplinary proceedings should be commenced on charges that “you have stored and have shared private and confidential information that is the property of a manager…”.

A disciplinary hearing took place on 1 December 2014 and Mr Morris was summarily dismissed on allegations that he had “stored” the copy of Mr Lord-Jones’ diary and “shared” it (by referring to it in a letter). Mr Morris appealed against his dismissal but was unsuccessful.

Mr Morris subsequently made claims for ‘normal’ unfair dismissal (section 98 Employment Rights Act 1996) and automatic unfair dismissal for trade union-related activities (section 152 Employment Rights Act 1996).

The decisions of the Employment Tribunal and Employment Appeal Tribunal

The Employment Tribunal found Mr Morris’ dismissal to be unfair for the following reasons: 1) he had not taken the photograph himself and dismissing him for simply ‘storing’ the information was outside of the range of reasonable responses; and 2) he had not ‘shared’ the copy of the diary but simply referred to it, and that dismissing him for this allegation was also outside of the range of reasonable responses. The Employment Judge also found that the principal reason for Mr Morris’ dismissal was engaging in trade union activities on behalf of his members (as he had obtained and used the copy of the diary for the purposes of challenging the fairness of the assessment procedure).

Metrolink appealed against this decision.

The Employment Appeal Tribunal

The Employment Appeal Tribunal upheld Metrolink’s appeal against the decision of the Employment Tribunal on the basis that Mr Morris acted wholly unreasonably or maliciously in carrying out his trade union functions (as he knew, or reasonably should have known, that the information had been unlawfully obtained). The EAT therefore remitted the case to the Employment Appeal Tribunal to reconsider the reason for Mr Morris’ dismissal.

Mr Morris appealed against the decision of the EAT.

The decision of the Court of Appeal

The Court of Appeal allowed Mr Morris’ appeal, restoring the original Employment Tribunal’s decision that Mr Morris had been automatically unfairly dismissed. Lord Justice Underhill, giving the sole judgment, held that the key facts that the Employment Judge had found could not lead to a conclusion but that he had been automatically unfair dismissed: 1) Mr Morris had had nothing to do with the copying of the diary, he had simply received it; 2) the reason that he had asked for a copy of the diary was that he was concerned that it affected the interest of his trade union members; 3) he told HR about the copy as soon as possible, nor did he act in an underhand or malicious manner; 4) there was no suggestion that he had made copies or that he had disseminated such to anyone else; and 5) the only use that he had made of the copies was contained in a letter to Metrolink itself; and 6) Mr Lord-Jones’ diary was a work diary and the information referred not to Mr Lord-Jones himself but to the performance of the company’s members.

Our solicitors’ comments on Morris v Metrolink RATP Dev Ltd

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case demonstrates the enhanced protection that trade union officials have against being dismissed in the course of their trade union activities – if a trade union official is dismissed for carrying out his or her activities then it will only be in exceptional cases that a claim for unfair dismissal is not upheld.”

The transcript of the Court of Appeal’s decision in Morris v Metrolink RATP Dev Ltd can be found here.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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