A customer service assistant who encouraged workers to ‘cyber picket’ her employer’s websites as part of strike action was automatically unfairly dismissed, London South Employment Tribunal has ruled.
Kelly Rogers was dismissed for gross misconduct after she suggested colleagues at Picture House Cinema block-book seats online they did not intend to buy, temporarily preventing them from being sold. However, because Rogers was acting as part of her union during strike action, she was protected by Trade Union and Labour Regulations.
Employment Judge Morton concluded that because the majority of the reasons given for Rogers’ dismissal referred to “[her] participation in the activities of an independent trade union at an appropriate time”, the dismissal was automatically unfair.
Rogers began work at the Brixton Ritzy Picturehouse in south London in September 2015, where she remained employed as a customer service assistant until her dismissal on 6 July 2017.
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Rogers joined BECTU, the media and entertainment trade union, in 2014 while working for a previous employer. After a few weeks at the Ritzy, she was elected branch representative. BECTU was the recognised union at the cinema but not at others in the franchise.
Between May and June 2016, Rogers became actively involved in a campaign for the London living wage and sought additional benefits such as sick pay and maternity pay. After a meeting between the union and senior managers from Picturehouse, a number of strikes took place between September 2016 and May 2017.
Rogers began discussions in February 2017 with Edd Bauer, a friend who was an employee at Hackney Picturehouse, about “cyber picketing”. The idea, which originated with Bauer, was to arrange for colleagues and members of the public to make block bookings of cinema tickets they did not intend to buy, thereby making them unavailable for up to an hour at a time to potential customers.
A meeting was held in a pub, attended by 30 or 40 people and chaired by Rogers, to discuss the idea. This was followed by an email from Rogers to attendees in which she said cyber picketing would make the strike action “much more effective”.
The email came to the attention of James Vandyke, general manager at Brixton Ritzy, after one of the duty managers left their inbox open on a laptop. Vandyke took a photo of the email on his phone.
The matter was referred to Picturehouse’s lawyers who, on 28 April, wrote a letter to BECTU which stated: “Our client has been the subject of malicious activity on its website (particularly at the Hackney cinema) during days when strikes took place.” It went on to refer to the email sent by Rogers and asked BECTU for various assurances about the origin of that email and whether or not BECTU had endorsed or encouraged similar action.
BECTU responded on 3 May to say the email was not authorised. The union then sent an email to its members at the Ritzy stating it did not endorse cyber picketing and that the action was potentially unlawful. “We will not provide assistance to members who are involved in unlawful activity,” it said.
Following a spell of annual leave, Rogers returned to work on 9 May and held a meeting with Vandyke and an HR representative. The next day she was suspended for sending an email which sought to damage the interests of the company. She was invited to a disciplinary meeting on 27 June.
Rogers said she had not realised when she sent the email that cyber-picketing might be unlawful. She said that by the time of the disciplinary hearing, she knew that it was wrong, but previously had seen it as a protest activity akin to boycotting or picketing. She expressed “clear regret” at having sent the email.
Cormac O’Connor, the dismissing officer and regional manager, introduced the term “cyber attack” part way through the meeting. He said it was not the same as other forms of strike activity as it “deprived customers of a choice.”
O’Connor reached the decision to dismiss after discussion with HR. Rogers was dismissed for gross misconduct on 6 July 2017. A subsequent appeal failed. Three individuals had already been dismissed in connection with the action.
Employment Judge Morton said: “Our analysis has led us to conclude that the majority of Mr O’Connor’s reasons for dismissal involved the claimant’s participation in the activities of an independent trade union at an appropriate time. Our conclusion is that the claimant’s dismissal was therefore automatically unfair.”
He added: “What seemed to us important was the fact that the claimant did not engage in cyber picketing – she merely suggested it in an email summarising the discussion at a trade union meeting and then, having been told by the union that it was potentially unlawful and not condoned, she took no further steps to make it happen.
“That being the case, we concluded that what the claimant actually did remained within the scope of 152(1)(b) TULRCA, which holds that ‘the dismissal of an employee shall be regarded as unfair if the employee had taken part, or proposed to take part in the activities of an independent trade union at an appropriate time.’”
Picturehouse told People Management it was “disappointed by the decision.”
It added: “It contrasts with the previous decision which held that three employees dismissed at the same time were not discriminated against by reason of their trade union duties.
“Picturehouse is proud of its employees and proud to be one of the highest-paying companies in the cinema industry and offers a competitive staff package.”
The case will now be listed for a remedy hearing at which the issues raised “can be determined.”