Facts

The Claimant was employed by Metrolink, the operator of Manchester’s tram network. He was also the local trade union official. As part of a business restructure, Metrolink was proposing to make redundancies. Various dissatisfied union members approached the Claimant to ask him to raise a collective grievance on their behalf. So far so good. Then came the twist: one union member forwarded the Claimant illicitly-obtained information. This consisted of a photograph of a page in a personal diary belonging to a senior manager. That manager had not been a scorer in the redundancy selection process, yet his diary appeared to contain comments about various individuals’ suitability for roles. That raised questions over the fairness of the selection process as a whole. Nobody quite knew how the diary had been accessed, nor by whom, but it was clear the picture had been ‘doing the rounds’ amongst employees. The Claimant decided to make a reference to the diary in the course of his grievance letter to HR.

The Claimant was suspended, investigated and then summarily dismissed for gross misconduct. It was said he had misused confidential information. Despite two internal appeals, his dismissal was upheld and ultimately confirmed by the MD of Metrolink.

Claims

The Claimant brought claims for: (i) automatic unfair dismissal on grounds of trade union activity (s.152 TULRCA 1992); and (ii) ordinary unfair dismissal (s.94 ERA 1996). The Respondent’s defence was that the real reason for dismissal was the misuse of confidential information from a manager’s diary. This took the Claimant’s actions outside the scope of legitimate trade union activity. As against that, the Claimant’s case was that the employer’s given reason for dismissal was something of an artifice. The true analysis was that he had been dismissed for exercising a trade union activity: namely, raising a collective grievance.

The key question for the Tribunal was: how should the employer’s reason for dismissal properly be characterised?

Outcome

Changez represented the Claimant. It was a hard-fought case. At an 8 day trial in Manchester Employment Tribunal, live evidence was given by some 11 witnesses including one who was cross-examined via video link. Ultimately, the Claimant’s case was preferred. The Tribunal upheld his claims for unfair dismissal, both ordinary and automatic. It was persuaded the true reason for dismissal was legitimate trade union activity. A mere reference to the diary in the grievance letter could not disqualify the collective grievance from protection under s.152 TULRCA 1992. It was still legitimate union activity. Nor could alluding to the diary form, on its own, a ‘sufficient’ reason to justify dismissal under s.98 ERA. There were nil findings on the issues of contributory fault and Polkey. The matter now proceeds on the issue of remedy.

This was a tricky case which turned on fine margins. From the Claimant’s perspective, we had to persuade the Tribunal to take the employer’s evidence with a degree of healthy scepticism. This called for close cross-examination of Metrolink’s witnesses to carefully de-construct their given reason for dismissal. Did it add up? Was it exaggerated? Had the decision to dismiss been swayed by an ulterior motive or outside influence?

On a broader note, this case illustrated the tension between the importance of upholding respect for confidential information and the need not to stifle lawful trade union activity. The guiding principle in all such cases is that union activity cannot be abused by a union official as a cloak to commit misconduct. Nor, however, should an employer be opportunist in finding ‘misconduct’ in order to suppress legitimate union activity: Burgess v Bass Taverns [1995] IRLR 596. Which side of the line any given case falls will turn on its particular facts.

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Author: Changez Khan Farrars (chambers@farrarsbuilding.co.uk)