Assessing the extent of the protection for trade union activities
We have had an influx of calls to the Advisory Service recently around trade union activities, therefore this case is particularly timely. Employers can often struggle with the protections afforded to union members on their payroll and this case offers some useful practical guidance.
The employee in question, Ms Rogers, was a representative of the Broadcasting, Entertainment, Communications and Theatre Union (BECTU) who was employed at the Ritzy cinema in London. Disputes had been ongoing between the BECTU and Picturehouse Cinemas Limited (the owner of Ritzy and several other cinemas across the city) about implementing the voluntary London Living Wage and other benefits for staff.
The claimant had discussions with another union representative at Picturehouse where the prospect of ‘cyberpicketing’ was brought up. This would involve getting people to bulk book cinema tickets with no intention of buying them by placing them in their online basket, preventing them from being sold for up to an hour. Following this, Rogers emailed a group of employees to inform them of the discussions and encourage participation, without setting out any specific plan of action.
The employer came across this email when someone left their laptop open at work. They contacted BECTU about this, who confirmed they had not been involved in the discussion and the union proceeded to write to staff informing them that cyber-picketing was potentially unlawful. A disciplinary procedure took place which resulted in Rogers being dismissed for gross misconduct. Despite arguing that she didn’t initially know how potentially serious cyber-picketing was prior to the BECTU’s email and that she regretted her actions, the employer ruled her behaviour was extremely serious and intended to cause damage to the company.
Rogers brought a claim of automatic unfair dismissal to an employment tribunal (ET) on the grounds that she had been dismissed for taking part in trade union activities, citing Section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992.
The ET ruled in favour of Rogers as the meeting had been arranged in advance as a way gathering of union members the day after strike action. They also considered the sending of the email to be in line with union activities, as the claimant was fulfilling their duty as branch secretary by summarising the discussions and providing information to members who were unable to be present at the meeting.
Importantly the ET noted that meetings do not have to be arranged by the union themselves for the protections to apply under Section 152. Also, the fact that something was discussed that was not acceptable to the employer, or that discussions involved something that was potentially unlawful, does not make it cease to be trade union activities.
In summary, the ET found the claimant’s actions to be ‘an error of judgment’, rather than ‘unreasonable, extraneous or malicious’ which will take the behaviour outside current protection and render the employee liable to disciplinary proceedings. Therefore, employers will need to apply this way of thinking in the future when faced with potentially disruptive trade union activity.