Can the use of leaked information be regarded as ‘trade union activities’ in respect of a claim for automatic unfair dismissal?
Yes, the Court of Appeal decided in Morris v Metrolink RATP Dev Limited.
Mr Morris, an employee of Metrolink and a trade union official, was involved in a restructuring exercise. He received a photograph showing a diary entry made by a line manager at Metrolink, which referred to candidates’ performance during the restructure exercise. This line manager should not have been involved in the restructure process and Mr Morris informed HR, raising a collective grievance. He was subsequently dismissed.
When considering Mr Morris’s claims for ordinary unfair dismissal and automatic unfair dismissal, the Employment Appeal Tribunal decided that protection for trade union activities did not apply to the wrongful or unlawful retention of confidential information, i.e. the photograph.
However, the Court of Appeal stated that Mr Morris had not acted in a deceitful manner. He had identified a wrongdoing which affected the interests of his union’s members and he had informed HR of this. The Court of Appeal stated that they were not concerned with ethics or morals and upheld Mr Morris’s appeal. His actions amounted to ‘trade union activities’ and therefore his dismissal was unfair.
Is an allegation capable of amounting to a protected disclosure?
Yes, in certain circumstances, the Court of Appeal decided in Kilraine v London Borough of Wandsworth.
A disclosure will be protected if a worker reasonably believes it contains ‘information’ which is in the public interest and relates to a factor contained within the Employment Rights Act 1996, for example health and safety or failure to comply with legal obligations.
The Court of Appeal considered what ‘information’ actually means. They stated that an allegation can contain information, but an allegation which is too general or lacking in factual content will not amount to information.
Consequently, determining whether an allegation amounts to information is a matter for objective analysis, taking into account the entire context and surrounding circumstances of the allegation.
Simply stating ‘you have failed to comply with health and safety’ alone will not constitute information for the purposes of a protected disclosure. However, providing evidence of the allegation (for example alleging that high visibility gear or protective equipment are not supplied) would constitute information.
Can the statutory notice period be applied in cases of gross misconduct to lengthen an employee’s service and so entitle them to the right to claim unfair dismissal?
No, the Employment Appeal Tribunal decided in Lancaster & Duke v Wileman.
Ms Wileman had been dismissed without notice on grounds of gross misconduct 2 days before her 2 year anniversary at work. She claimed unfair dismissal, stating that her one week statutory minimum notice period would have taken her over the 2 year line, allowing her to claim unfair dismissal.
The EAT decided that, under s.86 Employment Rights Act 1996, if an employee commits gross misconduct and is consequently dismissed without notice, then they are not entitled to add on their statutory notice period to their length of service for the purposes of determining whether they have enough employment to be able to bring an unfair dismissal claim.