London City Airport Ltd v Chacko

On an application for interim relief for trade-union-related automatic unfair dismissal, the Employment Tribunal must make an expeditious summary assessment of how the claim appears on the material then available. The statutory requirement that success be “likely” sets a higher threshold than a bare balance of probabilities. It requires a pretty good chance of success.

The Tribunal may weigh untested documentary material and draw provisional inferences from matters capable of undermining the employer’s stated reason for dismissal. It need give only the essential gist of its reasoning. An appeal lies only on law. An appellate tribunal should not substitute its assessment and should interfere for perversity only in the plainest case.

The claimant, an active trade union representative, was dismissed for alleged misconduct after his union notified the employer that he would participate in a ballot for union recognition. He brought claims for automatic unfair dismissal based on trade union activity and action to secure union recognition.

The Employment Judge granted interim relief. The employer appealed, alleging that the Judge had misapplied the likelihood test, failed to assess its misconduct evidence and the asserted trade union connection, adopted impermissible comparisons, and reached a perverse conclusion.

The central issue was whether the Employment Judge had erred in making a summary assessment that the claimant was likely to establish that trade union reasons were the sole or principal reason for dismissal.

1. Appeal dismissed. The Employment Judge correctly directed himself that an interim-relief applicant must have a pretty good chance of succeeding in the underlying automatic-unfair-dismissal claim. That standard, derived from Taplin v C Shippam Ltd [1978] ICR 1068 and upheld in Dandpat v University of Bath [2009] UKEAT/0408/2009, is higher than a bare balance of probabilities.

2. The statutory question is how the claim appears to the Employment Judge at a promptly convened summary hearing. The Judge must do the best possible with the documents and arguments then available. Untested evidence must be weighed provisionally. The process does not require the detailed factual scrutiny appropriate at the final hearing.

3. The Employment Judge had considered the employer’s misconduct case. His reasons sufficiently identified its essential gist and explained why the speed of the disciplinary process, the contrasting treatment of grievances, and the apparent inconsistency of sanctions could cast doubt on misconduct as the ostensible reason for dismissal. The claimant did not need to prove a conspiracy. It was enough that trade union activity might be found to be the sole or principal reason for dismissal.

4. The Judge was entitled, at this preliminary stage, to draw provisional inferences from comparisons with the treatment of other employees. The cautions in Hajiannou v Coral Casinos Ltd [1981] IRLR 352 and Paul v East Surrey District Health Authority [1995] IRLR 305 did not prevent that assessment.

5. An EAT appeal is confined to law. The EAT must not substitute its own assessment for that of the Employment Judge. Perversity intervention is appropriate only where no right-thinking Employment Judge could have reached the conclusion. That high threshold was not met. Any subsequent prejudice caused by delay or altered circumstances was for a first-instance application to vary or discharge the interim-relief order.

• Employment Appeal Tribunal — dismissed the employer’s appeal and upheld the Employment Judge’s interim-relief order.
• Employment Tribunal — Employment Judge Keith granted interim relief pending determination of the claimant’s automatic-unfair-dismissal claim.