Employment Update: Hot potatoes and crystallised rights

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Hot potatoes and crystallised rights. What are we talking about? You might think the June hot weather has really got to us this month but our ‘hot potato’ is illegally obtained information in the context of trade union activities and our ‘crystallised rights’ relate to comparators in equal pay claims.

Morris v Metrolink RATP Dev (Court of Appeal)

Mr Morris was the North West England representative for the Workers of England Union.

In June 2014, Metrolink carried out a restructuring exercise of their supervisors using an ‘assessment centre’ to make redundancy selections. Line managers were not to be involved in the selection process. The outcome was that 5 supervisors were put at risk of redundancy, 4 of whom were already members of the Workers of England Union and the 5th joining shortly afterwards.

Mr Morris lodged a collective grievance on behalf of his members taking various points about the conduct of the assessment. At a subsequent meeting, it was agreed that other roles would be found for these members, with a degree of pay protection.

However, it then came to light that an employee had a photograph of part of a diary kept by a Mr Lord-Jones, a line manager of some of those placed at risk of redundancy. It was not known who took the photograph but it was clearly taken without consent. It appeared Mr Lord-Jones had been briefed by his superior about how the candidates had performed and he had made notes of this in his diary. The comments were adverse in respect of the 5 union members. It seemed their line manager did have a role in the redundancy selections, in breach of procedure.

Mr Morris therefore asked for a copy of the photograph to be sent to him. He received it whilst on holiday and upon his return, immediately went to Human Resources to discuss it. Mr Morris showed the photographs and questioned HR about the contents and involvement of line managers in the redundancy selections. He followed this up in writing, indicating that despite the agreement reached, there were “ongoing concerns” and the union wished to proceed with the grievance. Reference to Mr Lord-Jones’ diary was included.

Two days later, Mr Morris was suspended due to an unconnected incident of his wife posting tweets containing company confidential information. No action was taken in relation to this issue however Mr Morris was charged with storing and sharing private and confidential information that was the property of a manager within Metrolink. Following investigation, he was dismissed with immediate effect for gross misconduct.

Mr Morris claimed unfair dismissal and automatic unfair dismissal in that the reason for his dismissal (or if more than one, the principal reason) was that he had taken part in the activities of an independent trade union.

The Tribunal at first instance upheld Mr Morris’s claims. It did not regard his conduct as gross misconduct. However, the Employment Appeal Tribunal overturned this decision, deciding that as the information had been unlawfully obtained for the purposes of his union activities, Mr Morris could not enjoy protection from dismissal. He should not have asked for the information to be provided and when received, he should have deleted it. Mr Morris appealed to the Court of Appeal.

The Court of Appeal upheld Mr Morris’s appeal. The central issue was whether the limited way in which the representative made use of the leaked information was a sufficient departure from good industrial relations practice to take his conduct outside the scope of “trade union activities”. In deciding that his conduct did not fall outside that scope, the court took into account that he was simply a recipient, with no evidence he’d made further copies; the confidential information related to his members, not the company, and in any event he only disclosed it to HR and finally, the information seemed to reveal a potentially serious irregularity in the way the assessment centre had been conducted.

The Court acknowledged that it could not be unusual for a union representative to be the recipient of a leak in the form of unsolicited information obtained without the owner’s consent. Although a strict moralist might say that the only correct course was to decline to receive the information, or to destroy it, the court was not involved in an “ethics seminar”.

In summary, the hot potato, juggled all the way to the Court of Appeal, can now be laid to rest, but with a word of warning to all union reps out there – upon receipt of unlawfully obtained information, tell the employer you have it, do not disclose it to anyone else or make copies and make sure that it is relevant and important to the complaint made on behalf of the member.

Reading Borough Council v James & others (Employment Appeal Tribunal)

This is an equal pay case. The Claimants sought arrears of back pay dating back to 2002, comparing themselves with 2 comparators in post from that time and found to be doing work of equal value to the women. From 6 April 2006 one comparator was promoted to a different role and from 1 May 2011 the other comparator was assimilated onto a Single Status Scheme with a lower rate of pay.

Reading Borough Council argued that these 2 comparators were no longer valid comparators at the point they were promoted and/or assimilated onto a different contract. The Employment Tribunal rejected that argument. Reading Borough Council appealed.

The Employment Appeal Tribunal rejected the appeal.

The EAT held that once an appropriate comparator is established, the woman’s contract is treated as modified so as to not be less favourable. The implied contractual right to pay at the higher rate referable to the 2 chosen comparators, crystallised in 2002 and has and will continue until the women’s contracts are validly varied or terminated. The Claimants in this case therefore already had rights to higher pay by 2006/2011 when the chosen male comparators’ contracts changed. The focus must be on changes to the women’s contracts – “not on the fortuitous continued presence or otherwise of the chosen comparator in the same role”.  Ms James and others, are therefore entitled to claim all of their back pay.

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