REWARD INSIGHT
Cyberpicketing, redundancy, causal link
NicolaMullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
Rogers V Picturehouse Cinemas Limited Employers can often struggle with the protections afforded to trade union members on their payroll. This case offers some useful practical guidance by examining the extent to which certain acts are protected under the umbrella of trade union activities. Ms Rogers, a representative of the Broadcasting, Entertainment, Communications and Theatre Union (BECTU), was employed at the Ritzy cinema in London. Disputes had been ongoing between 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, which confirmed they had not been involved in the discussion and the union proceeded to write to staff informing them that cyberpicketing 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 cyberpicketing was prior to 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 of a 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 her 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 would 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. SouthWest Yorkshire Partnership NHS Foundation Trust v Jackson & others This case looked at whether an employee on maternity leave suffered unfavourable treatment amounting to discrimination, after there was a delay receiving a letter informing her about a risk of redundancy. Ms Pease had worked in the Trust’s health and wellbeing service. Whilst on maternity leave, she chose to attend a redundancy meeting at work with her colleagues on 26 July 2016. The day after the meeting, the claimant and her colleagues were put on the ‘at risk register’ and were ultimately sent an email on 28 July 2016 by the Trust which required them to complete a re-deployment document as
...informing them that cyberpicketing was potentially unlawful...
| Professional in Payroll, Pensions and Reward | July/August 2019 | Issue 52 34
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