Automatically Unfair?
Employers should be aware that any dismissal that relates to an employee taking part in the activities of a trade union, or on the grounds of union-recognition will be automatically unfair. In addition to this, unlike most claims for unfair dismissal, an employee DOES NOT need two years of continuous service to bring a claim for unfair dismissal on trade union grounds. A dismissal will be automatically unfair if the principal reason for dismissing the employee was because:
- They were or proposed to be a member of a trade union;
- They had taken part or had proposed to take part in the activities of an independent union at an appropriate time;
- They proposed to use or did, in fact, use trade union services at an appropriate time;
- They were not members of an independent trade union.
Dismissal in the context of trade unions does include express dismissal, constructive dismissal or not renewing a fixed term contract.
Activities Of A Trade Union
For an employee to be deemed to be taking part in the activities of a trade union, the activity must be that of the union and not just those of an individual who happens to belong to a union.
Whether or not the activities will be classed as trade union activities will be decided by the Tribunal on a case by case basis. In some cases, the Tribunal may need to consider whether the employee carrying out the activities is actually a trade union representative before concluding whether or not they were carrying out trade union activities.
Metrolink Ratpdev Ltd v Morris
The Courts have normally interpreted trade union activities widely, however, a recent case has shown that the courts are moving away from this.
In the case of Metrolink Ratpdev Ltd v Morris, a company was in the process of a reorganisation, during which a colleague told Mr Morris, a trade union representative, he had evidence to show that the reorganisation was being conducted unfairly and that he had a photo he had taken of a manager’s diary which he subsequently showed to Mr Morris.
Mr Morris then raised a collective grievance about the unfair reorganisation, using the photograph as evidence.
Mr Morris was subsequently dismissed for handling private and confidential information that was the property of a manager. The Employment Tribunal concluded that it was automatically unfair as the employee was taking part in the activities of an independent trade union by storing information on their behalf.
The Employment Appeals Tribunal disagreed
The judge stated that the reason for the dismissal was because of the handling of private and confidential information that was unlawfully obtained. This case demonstrates that if such activities are carried out dishonestly or in bad faith, trade unionists will not be afforded protection from dismissal in law.
In practice, dismissals in relation to trade union membership are very rare, due to the protection unionists receive in law.
