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Interim relief for employee who used union to lodge grievance over coronavirus measures

01 October 2020

In a sign of a potential rise in claims for interim relief, an Employment Tribunal has ordered the reinstatement of an employee claiming unfair dismissal for using a trade union to bring his grievance over coronavirus measures.

Facts of the case

In March 2020, in response to the Covid-19 pandemic, Premier Fruits proposed that its employees take a 25% pay cut. It was under the impression that all employees had agreed to this but, in May, a trade union called United Voices of the World lodged a grievance over it on behalf of an employee, Mr Morales. Premier Fruits met with Mr Morales two days later and, although what happened at that meeting is unclear, he was not invited to a staff meeting taking place the next day.

During the staff meeting, a manager of the company was recorded as saying that “one particular person in the firm has decided to go to a union” and that this individual was “not obviously backing the company”. The manager said he was “extremely upset and disappointed over this one person who decided to go to the union” and that “you can probably all guess who the person is as he is not stood in the office at this moment in time”. He concluded: “I will not be dictated to by a union. What they did to the firm 12 years ago was disgusting”.

Shortly afterwards, Mr Morales was asked to sign a document confirming that he would agree to accept a pay reduction, but he refused. At a grievance meeting on 20 May, he complained about victimisation for bringing his grievance. After the initial grievance was rejected, he appealed that decision and in addition complained about having been subjected to detriment on the ground of trade union membership or activity. Premier Fruits proceeded to dismiss Mr Morales on 9 July, stating as the reason that it was “unable to sustain your full salary”.

Employment Tribunal’s decision on interim relief

Mr Morales brought proceedings in the Employment Tribunal (ET) for automatic unfair dismissal based on his trade union membership or activities. He also sought interim relief in the form of immediate reinstatement pending the final hearing.

Interim relief orders can only be granted if, after an “expeditious summary assessment”, it appears to the ET "that it is likely" that the claimant will succeed in their claim. This remedy is only available in claims of automatic unfair dismissal for one the following:

  • trade union membership or activities
  • making a protected disclosure (whistleblowing)
  • health and safety activities.

The ET in Mr Morales case, after its assessment of the evidence before it, found that Mr Morales was likely to be able to show that he was dismissed because he had sought the assistance of his union to bring his grievance. This was because the manager had clearly acted extremely adversely in response Mr Morales’ action in doing so. The ET accordingly ordered his reinstatement by the company pending a full hearing, with immediate effect.

Implications for employers

Interim relief has traditionally only rarely been sought due to the very limited circumstances in which it is available. The pandemic may, however, lead to a significant increase in applications given that it has led to an increase in trade union activities in response to employers’ measures in response to the pandemic, whistleblowing over concerns about workplace safety, and health and safety activities.

The pandemic has also led to significant and lengthy backlog in the ETs. This makes interim relief applications increasingly attractive to claimants as means of securing financial security pending their full hearing, as applications must be heard “as soon as practicable”. In Mr Morales’ case, he was dismissed on 9 July and reinstated just over a month later, on 12 August.

This case recalls another recent case which illustrated the serious consequences for an employer of an investigating manager displaying hostility to trade unions. The crucial lesson for employers is that they should take steps to avoid the risk of claims relating to union activities or membership arising in the first place. For example, they should take steps to ensure that all stages of investigations and disciplinary proceedings are carried out fairly and that trade union members and officials are not differently treated on account of their status. This is particularly important as the pandemic has seen rising unionisation, reflecting an increased anxiety over workplace health and safety and the risk of redundancies.

Morales v Premier Fruits (Covent Garden) LtdET decision available here

 

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