Now that we are well into October we would like to remind you that the Modern Slavery act is now in force. To find out what your business might need to do read our briefing note here. If you have any questions about the act or would like advice on drafting a policy please email firstname.lastname@example.org. Given the fact that Halloween is right around the corner we thought this weeks’ case should cover something many employers find scary…. trade unions
The question this week is:
Can an employer dismiss a trade union rep who despite participating in union activities has committed a disciplinary offence?
Ms Azam, the Claimant, was a delivery operator for the Respondent, Ofqual, a regulatory body for academic and vocational qualifications. The Claimant and roughly 50% of the Respondent’s staff were members of the Public and Commercial Services Union (PCS) and the Claimant was a union representative at the Respondent. The Respondent went through a restructuring process which would see a change to the grade and salary of job roles. As Union rep the Claimant was involved in discussions with the Respondent about the proposed changes. Prior to this the Claimant had made several complaints to the Respondent on behalf of her union members, some of which were unresolved.
During the discussions the Respondent disclosed a spreadsheet to the Claimant detailing the changes between the old and new roles. The Respondent emphasised that this disclosure was to remain confidential and the Claimant was told not to share this information with colleagues. The Claimant discussed the spreadsheet with senior Union members outside of the Respondent but she did not mention that the information should not be shared with the Respondent’s staff. The Claimant then sent the spreadsheet via email to all PCS union members at the Respondent. She masked the nature of the email so as not to arouse suspicion.
However the Respondent discovered that the Claimant had distributed the spreadsheet after a non-PCS member of staff complained that union members had better knowledge of the restructuring. The Claimant was suspended and dismissed for gross misconduct. She bought an unfair dismissal claim in relation to trade union activities before tribunal
The ET ruled that the Claimant had not been dismissed for her trade union activities but for disclosing confidential information against the express orders of the Respondent. The ET ruled that not only had the Claimant been told several times that the spreadsheet was confidential but that the Respondent also had this exact scenario listed in its handbook under gross misconduct offences. The Claimant appealed to the Employment Appeals Tribunal. The EAT dismissed the appeal citing the same reasons as the ET. Despite the Claimants participation in union activities it was her disclosure of confidential information that resulted in her dismissal
The take away point from this case is that despite the Claimant being an active union rep the Respondent was well within its rights to dismiss her. The Claimant had expressly gone against company policy by disclosing confidential information. Thus the gross misconduct dismissal was completely separate to any ongoing union work.
Many employers tread carefully in trade union matters, and rightly so, as there can be negative backlash from staff, even in this case staff went on strike to protest the employee’s dismissal. However, if the employer can prove the dismissal was gross misconduct and not related to union activity then the dismissal will be fair.
To read more cases on gross misconduct click here.