Serco Ltd v Dahou

For claims under sections 146 and 152 of TULRCA 1992, the tribunal must identify the particular protected trade-union activities and determine the relevant decision-maker’s sole, main, or principal purpose. It must assess the employer’s evidence and explanations before rejecting the asserted reason. Failure to prove the employer’s asserted reason does not compel a finding that the employee’s alleged prohibited reason was the true reason.

Protection for union activities depends on their occurring at an appropriate time. Where no consent has been given for activities during working hours, the tribunal must address whether the activities which the employer sought to deter were outside working hours. General concern about union activity or industrial action is insufficient.

The Employment Tribunal upheld the employee’s complaints that his suspension, misconduct investigation and dismissal were motivated by his participation in RMT activities. It found a detriment under section 146(1)(b) and automatic unfair dismissal under section 152(1) of TULRCA 1992. Other detriment complaints were rejected, and ordinary unfair dismissal was not determined.

The employer appealed. It contended that the Tribunal had misapplied the burden of proof, failed to evaluate explanations for the suspension and investigation, and had not identified protected union activities undertaken at an appropriate time. It also challenged the reasoning that an industrial-relations manager had influenced the dismissal decision for a prohibited reason.

1. Appeal allowed. The Employment Tribunal’s findings of unlawful detriment and automatic unfair dismissal could not stand. Its errors in approaching causation, burden of proof and protected activity permeated its reasoning.

2. Under section 146(1)(b) of TULRCA 1992, the issue was the employer’s sole or main purpose: the object which the relevant decision-maker sought to achieve. The Tribunal had to determine that purpose separately for those responsible for suspension, investigation and dismissal. It could not treat distinct decisions and decision-makers as one undifferentiated act.

3. After an arguable case of an unlawful purpose, the employer had to show its main purpose. The Tribunal nevertheless had to evaluate the employer’s explanations and make findings upon them. It was not entitled to reject those explanations without reasons or a proper evidential basis, especially where its conclusion effectively alleged bad faith or pretext.

4. Failure to establish the employer’s asserted proper reason did not, as a matter of law or logic, establish the employee’s alleged improper purpose. The tribunal had to determine the actual purpose from the whole evidence and permissible inferences. A decision-maker’s possible satisfaction at removing an employee associated with a strike was insufficient unless the main purpose was to prevent or deter protected union activity.

5. The Tribunal also failed to identify the particular union activities which were said to be protected and which the employer sought to prevent. As the RMT was unrecognised and no consent was given for activity during working hours, protection depended upon activity outside working hours. The Tribunal wrongly substituted its own view that the employee had not acted at an inappropriate time for the relevant question: the decision-makers’ understanding, belief and desired object.

6. The dismissal finding failed for the same reasons. The Tribunal had not properly evaluated the dismissal decision-maker’s evidence or identified an evidential basis for finding that another manager influenced the dismissal for a prohibited principal reason. The detriment claim, and the automatic and ordinary unfair-dismissal claims, were remitted to a differently constituted Employment Tribunal for a fresh hearing.

• Employment Appeal Tribunal: allowed the employer’s appeal and remitted the detriment and unfair-dismissal claims for a fresh hearing.
• Employment Tribunal, London Central: judgment promulgated on 30 August 2013. It upheld the suspension/investigation detriment complaint and the automatic unfair-dismissal complaint under TULRCA 1992, while rejecting other detriment complaints.