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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Morris v Metrolink RATP DEV Ltd [2018] EWCA Civ 1358 (14 June 2018) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2018/1358.html Cite as: [2018] IRLR 853, [2018] WLR(D) 378, [2019] ICR 90, [2018] EWCA Civ 1358 |
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ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Slade J
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE BEAN
and
LORD JUSTICE IRWIN
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STEPHEN MORRIS |
Appellant |
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- and - |
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METROLINK RATP DEV LTD |
Respondent |
____________________
Dr Edward Morgan (instructed by Prosperity Law) for the Respondent
Hearing date: 26 April 2018
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Crown Copyright ©
Lord Justice Underhill :
INTRODUCTION
THE FACTS
"… [T]he claimant explained to Ms Huthwaite that the main reason he wanted to meet Marie Daly related to the assessment centre and the successful and unsuccessful candidates. He told her that he had images on his phone of Graham Lord-Jones' diary that he was going to use as evidence and showed these to her. He said he wanted to know why Graham Lord-Jones had this information as he had not been at the assessment centre. He said that he thought the comments in the diary were detrimental to the unsuccessful candidates. The claimant said he felt that Mr Lord-Jones had a hand in the decisions made in terms of unsuccessful candidates from the assessment centre."
The Judge found that Ms Huthwaite did not regard the conversation as particularly significant and did not report it to Ms Daley on her return (see para. 60 of the Reasons).
"We wish to raise the issue of Graham Lord-Jones 2013 diary, and the personal comments made about our members and their assessment day."
The copy of the notes was not attached nor was anything else said about the contents. The letter concluded:
"I hope that this collective grievance and the new items can be heard at the earliest opportunity."
The item about Mr Lord-Jones's diary was included in the letter as a direct result of an e-mail sent the previous day by Mr Armsden to the Appellant identifying a number of issues which he wanted the Union to raise.
"You have stored and have shared private and confidential information that is the property of a manager within [Metrolink]."
THE BACKGROUND LAW
"For purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee —
(a) …
(b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time
(ba)-(c) … ."
"The marks within which the decision must be made are clear: the special protection afforded by paragraph 6 (4) to trade union activities must not be allowed to operate as a cloak or an excuse for conduct which ordinarily would justify dismissal; equally, the right to take part in the affairs of a trade union must not be obstructed by too easily finding acts done for that purpose to be a justification for dismissal. The marks are easy to describe, but the channel between them is difficult to navigate."
He went on to say that on the facts of the instant case the employees could not be said to have been guilty of any misconduct. He concluded, at p. 419C:
"We do not say that every such act is protected. For example, 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."
"I am very far from saying that the contents of a speech made at a trade union recruiting meeting, however malicious, untruthful or irrelevant to the task in hand they may be, come within the term 'trade union activities' in s.58 of the Act."
"… the way in which trade union activities are carried out is immaterial to the decision as to whether they are in fact trade union activities unless the way in which they are carried out is such as to be dishonest, in bad faith, or carried out for some other organisation or cause so as to remove them from the scope of what can properly be called trade union activities".
She said at para. 20 that that approach was to be followed rather than that in Lyon "if and insofar as there is any relevant inconsistency between [them]"; but she did not herself point to any specific inconsistency.
THE ET PROCEEDINGS
"Whilst the collective grievance does not perhaps explain as clearly as it might the concerns raised by the information in Mr Lord-Jones' diary, it is clear that the concerns relate to the fairness of the assessment process. The reference to the diary entry cannot be detached from the rest of the grievance. The claimant was taking part in the activities of an independent trade union by storing the information and raising this on behalf of members. … The claimant was dismissed because of this storing and sharing of information. The reason for dismissal was because the claimant had taken part in the activities of an independent trade union at an appropriate time and the dismissal was automatically unfair."
She goes on at para. 156 to say that the two appeals did not alter the position. Since there is no issue on that point I need not set out what she says. At para. 157 she says that that conclusion means that it is unnecessary for her to deal with the issue of unfair dismissal under section 98 but that she will do so for completeness.
"161. I conclude that dismissal for storage of the information alone would be outside the band of reasonable responses. If it had not been for the trade union context, some sort of warning for storing and not deleting the information might have been appropriate, but dismissal for storage alone would be outside the band of reasonable responses.
162. The only 'sharing' relied on by Mr Phillips was the reference in the collective grievance of 7th September. Since this did not even attach the photo or refer specifically to the contents of the diary entry, I conclude that dismissal for this sharing would be outside the band of reasonable responses."
"Given my conclusion that the complaint under section 152 TULRCA 1992 is made out, I do not consider that the Polkey issue falls to be considered. In the light of this conclusion, I also do not believe that there was culpable and blameworthy conduct on the part of the claimant that contributed to his dismissal for this reason."
THE DECISION OF THE EAT
"[A]t the very least, the information retained and stored by the Claimant was information that was private, confidential and unlawfully obtained."
She then proceeds:
"48. In my judgment, as a matter of principle, dismissal for the retention of unlawfully obtained information for trade union activities in general does not enjoy the protection of section 152. Mr Khan contends that that conclusion must depend on the facts. If the unlawfulness played a small part in the activities which an individual engages in on behalf of a trade union, or if the unlawfulness element is not deliberate, it may be that storing and sharing unlawful material may not lead to the loss of protection under section 152. To that extent, the decision as to whether or not section 152 protection is lost is fact-sensitive. However on the facts of this case the Claimant well knew that what he had retained and stored was unlawfully obtained, was confidential information belonging to Mr Lord-Jones and was his private information. It is fanciful to say, as has been contended, that the Claimant acted properly by going to HR with the shots that he had been sent of Mr Lord-Jones' diary. The Claimant should not have asked for it, which he agreed that he did in the first place, and, if he had received it, he should have deleted it. It is also fanciful to say that the only thing he could have done was to go to HR and that he took the proper course of action.
49. In my judgment, the Employment Judge failed to apply section 152 TULRCA. The Employment Judge did not consider the real issues in the case in the conclusions section of the Judgment. She failed to consider whether the dismissal for the wrongful or unlawful retention of confidential information for trade union purposes enjoyed the protection of section 152. The appeal against the finding in favour of the Claimant of his claim of automatic unfair dismissal under section 152 is allowed. It follows that the finding that there was an unfair dismissal under section 98(4) ERA, which depended on the erroneous conclusion under section 152, also falls, and the appeal in that regard is also allowed. It is plain from paragraph 158 that the conclusion in relation to the ordinary unfair dismissal claim depended entirely on the erroneous conclusion under section 152."
"I have had a request to substitute a decision of this Employment Appeal Tribunal for that of the Employment Tribunal and dismiss the claim under section 152. Reference has been made to Jafri v Lincoln College [2014] ICR 920 CA, in particular to paragraphs 44 and 45 in the judgment of Laws LJ. In the circumstances of this case and on the findings of fact in the conclusions section of this Judgment, which must in any event stand, this case comes very close to a case in which on a proper application of the law there can be no other possible answer than to say that the reason for the dismissal was not for the Claimant taking part in trade union activities but for the gross misconduct in retaining unlawfully obtained confidential and private information. I am on the verge of making an order for substitution, and it is difficult to see in the circumstances of this case how more than one outcome on proper application of the law is possible. However, there would be a very small percentage chance that the outcome would be different on remission, and, having regard to paragraph 45 in Jafri, I am not going to make an order for substitution. However, I would like it noted that in the Judgment that if on a remitted hearing the Claimant fails in his claim the Tribunal should consider very carefully whether a costs order should be made against him."
THE APPEAL
(1) There was no finding that the Appellant had anything to do with the copying of Mr Lord-Jones's diary. He was simply a recipient of a copy made by someone else without his knowledge or approval.
(2) The reason that he asked to be sent a copy when he was told about the information that it showed was that it appeared to reveal a potentially serious irregularity in the conduct of the assessment centre, which might affect the interests of his members.
(3) He told HR as soon as possible after he had received the copy: see para. 7 above. I do not place great weight on this point because his approach does not appear to have been on the basis that he was in an awkward position and wanted advice as to how to proceed. (I think this is why Slade J said that she regarded it as "fanciful" to say that that made his conduct alright.) But it does mean that he did not himself act in any underhand manner.
(4) There is no suggestion that he made any other copies, still less circulated them to anyone else.
(5) The only use that he made of the copy was to refer to the information that it contained in a letter to the Respondent itself, whose information it ultimately was (it could not of course belong to Mr Lord-Jones personally). The reference was in indirect and general terms (though since the Respondent had the diary itself it is hard to see that it would have mattered if it had been more explicit).
(6) Although what was copied was Mr Lord-Jones's diary, it was a work diary, and the information copied did not relate to him personally but concerned the assessments of the aptitude and ability of the Union members whom the Appellant represented: to the extent that it was confidential it was their interests rather than that of the business that were primarily affected.
I wish it to be clearly understood that none of those points – including the last – is intended as justification of the conduct of whoever copied Mr Lord-Jones's diary. It is possible, though this aspect was not explored before us, that the employees whose information was recorded in the diary would have had a right in some circumstances to be given that information; but that does not in any way justify its surreptitious copying. I am doing no more than identifying the extent of the relevant conduct on the part of the Appellant.
DISPOSAL
Lord Justice Bean:
Lord Justice Irwin: