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Cyber wars

A London Employment Tribunal has determined that a customer service assistant was unfairly dismissed for encouraging colleagues to ‘cyber picket’ her employer’s website as part of wider strike action relating to pay and benefits.

Rogers v Picturehouse Cinemas Limited

Kelly Rogers began her employment with Picturehouse Cinemas Limited at its Cambridge site on 6 July 2015 before transferring to its Ritzy Cinema site in September 2015. She remained employed at that location until her dismissal for gross misconduct on 6 July 2017.

She had joined the Broadcasting, Entertainment, Communications and Theatre Union (“BECTU”) whilst working for a previous employer. BECTU were recognised as a Trade Union at “The Ritzy” but not at other Picturehouse Cinema locations. Following a campaign of strikes in 2014, a pay deal was brokered in which a 26% pay rise was agreed for employees with a moratorium on striking for two years. As part of the arrangement Picturehouse Cinemas Limited had agreed to work towards the implementation of the ‘London Living Wage’ for its employees

Ms Rogers was quickly elected as her Union branch representative. She became involved in a number of strikes taking place between September 2016 and May 2017. In early 2017 she began to discuss the concept of ‘cyber picketing’ with a colleague, which they envisaged would involve helpful members of the public reserving blocks of cinema tickets to stop legitimate customers being able to buy them, having the effect making life more difficult for the Company on strike days.

The idea to ‘cyber picket’ was presented to approximately 40 people by Rogers at a meeting at a local pub. She subsequently sent an email to the attendees stating that the ‘cyber picketing’ method would be “much more effective” means of striking. The email was inadvertently found on an open PC by a general manager who referred it to the Company’s lawyers. The lawyers sought assurances from BECTU that the email was not sanctioned by them and that it would not encourage similar actions. BECTU responded by stating that it would not endorse the action and indicated to Rogers that it was potentially unlawful.

Rogers returned from Annual Leave on 9 May and was suspended following a meeting with the general manager and a HR representative. She was invited to a disciplinary meeting on 27 June, and despite expressing “clear regret” for sending the email, she was dismissed for gross misconduct on 6 July 2017.

She unsuccessfully appealed against the decision and went on to bring a claim for unfair dismissal.

Decision

The Employment Tribunal had to determine whether the meeting at the pub and the subsequent email constituted ‘activities of an independent trade union’ and whether Ms Rogers had therefore been dismissed for taking part in such activities.  If so, her dismissal would be automatically unfair under s152 Trade Union and Labour Relations (Consolidation) Act.

The Tribunal found that the meeting and email were union activities, notwithstanding that BECTU later confirmed that any cyber picketing would not be officially sanctioned. Ms Rogers had therefore been automatically unfairly dismissed.

To cover all bases, the Tribunal ruled that, in case it was wrong about the meeting and the email constituting union activities, Ms Rogers was nevertheless unfairly dismissed on ordinary principles as the decision to dismiss on the facts fell outside the range of reasonable responses available to the Company in the circumstances.

Comment

Employers should tread very carefully when considering taking disciplinary action arising from union activities. The protection afforded by TULR(C)A 1992 is wide ranging and this case demonstrates that Employment Tribunals are willing to widely interpret whether an employee’s activities fall within the definition of ‘activities of an independent trade union’.

Employers should be wary of knee jerk reactions which could lead to an automatically unfair dismissal, meaning that ‘fair’ process followed becomes irrelevant. 

If you have any queries in relation to Trade Unions or any other Employment Law or HR queries, please do not hesitate to contact the employment team on 01228 552600 or 01524 548494.

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