Hello, Friday has rolled around again which means it’s time for another Case Law Update. Last week we had two cases, one about unlawful deductions and our take on the Pimlico Plumbers case. This week’s update has a trade union theme. We have one case on trade union activities and unfair dismissal and an update on a previous union recognition case.
Our first case concerns trade union activity and unfair dismissal. A dismissal will be automatically unfair if it is in relation to trade union activities.
Therefore, today’s question is: Can receiving and storing confidential information amount to trade union activities?
Mr Morris, the Claimant, was a supervisor for Metrolink, the Respondent. The Claimant was also a trade union representative for a small independent trade union made up of the Claimant’s colleagues.
The Respondent went through a restructuring exercise and the Claimant’s trade union members were at risk of redundancy. During the selection process, those at risk were assured that their respective line managers would not be involved to ensure fairness.
Thereafter, a union member disclosed a picture to the Claimant of a line manager’s diary which showed that they were involved in the redundancy process. The picture was taken without the manager’s consent. The Claimant raised a grievance about the selection process on behalf of the union members. He cited the line manager’s diary as part of the basis for raising the grievance.
The Claimant was then suspended after it became apparent that the picture of the diary was taken without consent. The Claimant was disciplined and ultimately dismissed for storing and sharing confidential information.
The Claimant initiated ET proceedings. He argued that his dismissal was unfair because the diary picture came into his possession as part of his role as a trade union representative. The ET agreed. The photo came into his possession because of his trade union rep status and he disclosed it as part of his role as a rep. Therefore, the dismissal was linked to his trade union role and his trade union activities.
The Respondent appealed and the EAT allowed the appeal and overturned the ETs judgment. The EAT held that the ET had not considered whether receiving and storing the photo fell within trade union activity and in their view it did not. The Claimant’s storing and sharing of the photo was wrong.
The Claimant appealed to the Court of Appeal and the CoA allowed the appeal. They held that whilst a moral prude might object to receiving leaked information, it is fairly common for union reps to receive such documents. The Claimant did not share it with anyone other than HR nor did he encourage the source to take the photo of the diary. As such, the Claimant was acting within his role as a trade union rep.
The takeaway point:
Yes, it can. If the person processing and storing the data is a trade union rep then receiving the data will almost certainly amount to trade union activities and make any dismissal for storing the data unfair. If the representative distributes the data outside of their role then this could bring grounds for disciplinary action.
It is also worth noting that had the Claimant not been a trade union rep then this case would have had a different outcome. If the Claimant was a regular employee then any dismissal might have been fair.
Without realising, most managers, supervisors and team leaders obtain, process and store personal data on a daily basis as part of their role. To find out how the GDPR has impacted data protection in the workplace we recommend taking our GDPR e-learning course or booking some in-house training.