Test Case on Trade Union Activities

A key test case on the scope of statutory protection for trade union representatives against dismissal for their union activities, is to be heard in the Employment Appeal Tribunal (EAT) in London, on Thursday 19 March 2015.

Sofia Azam, from Birmingham, was sacked for gross misconduct in November 2013 by the examinations and qualifications regulator, Ofqual, in retaliation for an action which she had carried out in her role as Chair of the Public and Commercial Services (PCS) union branch at Ofqual’s Coventry HQ.

Section 152 of the Trade Union & Labour Relations (Consolidation) Act 1992 lays down that a dismissal shall be regarded as automatically unfair if the reason, or principal reason, for it was that the dismissed employee had carried out a trade union activity at an appropriate time.
Sofia had sent to union members a spreadsheet containing details of the salary gradings that Ofqual proposed to assign to posts within a restructured staffing organisation, following a job evaluation exercise. The employer had insisted that the information was confidential and that Sofia was in fundamental breach of contract in that she breached that confidentiality.

Sofia’s claim of unfair dismissal was unsuccessful at the Birmingham Employment Tribunal. The basis of her appeal is that the Tribunal Judge misapplied case precedents and failed to apply the important precedent of Mihaj v Sodhexo (2014). The judgment of the EAT in the latter case, was that a union activity should only be deemed as falling outside of the scope of statutory protection if the union representative had acted dishonestly, or in bad faith, or in pursuit of some external cause.
Sofia asserts that her case has important implications for all workplace union representatives. 'My employer tried to block a legitimate union action. It improperly and unilaterally attached a "confidential" stamp to industrial relations data which concerned the interests of my union members and which they had a right to have shared with them by their elected union representatives. The union duty which I was dismissed for performing, is a commonplace one for union reps throughout the Civil Service. It is the job of elected union reps to fully inform their members of proposals by the employer that affect those members’ interests. This is fundamental to a union’s being a democratic organisation, run by the members for the members. There is statute law that protects union reps in their carrying out of such duties. Ofqual flouted the law when it dismissed me.'

Sofia is however fighting the appeal without the support of the PCS union. On 23 February 2015 she received a letter from the union’s General Secretary, Mark Serwotka stating:
'We have decided not to support your case as an adverse judgement may narrow the protection provided for Trade Union representatives, by providing a further concrete example to employers as to why dismissal of Trade Union Representatives in specific circumstances will be lawful. That would potentially further the narrow the scope for Trade Unions which the current law gives to us. The funding of the case is not the issue.'

Sofia said that the argument that the union’s supporting her appeal may jeopardise future cases is morally repugnant. 'It is true that whenever an appeal is brought on a point of interpretation of statute law, the Court or Tribunal will be setting a precedent binding on lower courts and tribunals. That precedent could be beneficial or harmful, depending on which way it goes. However, it is surely unconscionable to deny a union member the funding to pursue her right to justice because the end result might possibly be undesirable for others.'

She added, 'This is even more so the case when we consider that I was an elected branch officer of the union who was dismissed for carrying out my duties towards the union’s members”.
Sofia concluded, “The pessimistic view of the union’s senior officials is strange, when the optimistic view would be that a victory for me at the EAT will enormously strengthen the statutory protection for trade union activities by establishing as precedent that an employer cannot place a union activity outside the scope of protection by unilaterally placing a ‘confidential’ tag on industrial relations information that concerns the rights of the union members and which they have the right to see and to be consulted about.'