Arriva London South Ltd v Graves

Where an employee alleges an automatically unfair dismissal for a prohibited trade-union or victimisation reason, the employer must establish the permissible reason relied upon and disprove the prohibited reason on the balance of probabilities. The tribunal must evaluate the actual motivation of the relevant decision-makers and may reject an asserted conduct reason despite admitted misconduct.

A finding that dismissal was for a prohibited reason under Trade Union and Labour Relations (Consolidation) Act 1992 or Employment Rights Act 1996 does not preclude a reduction for contributory conduct. Contribution concerns whether the employee's blameworthy conduct caused or contributed to the dismissal, and must be considered separately under the statutory provisions governing the basic and compensatory awards.

The claimant, a bus driver and RMT member, was dismissed for alleged gross misconduct after going off route and submitting a false occurrence report. He contended that the real reason was his RMT membership, union activities and victimisation for earlier successful proceedings concerning trade-union detriment.

The Employment Tribunal upheld complaints of automatically unfair dismissal under Trade Union and Labour Relations (Consolidation) Act 1992 and Employment Rights Act 1996. It rejected a separate detriment claim and made no reduction for contributory conduct because it found that the dismissal had a prohibited reason.

The employer appealed on the reason for dismissal and contribution. The central issues were whether the Tribunal was entitled to find a prohibited reason and whether that finding removed the need for a contributory-fault enquiry.

1. Appeal allowed in part. The Employment Tribunal was entitled to find that the employer had not established conduct as the real or principal reason for dismissal and had failed to disprove the prohibited reasons. The appeal therefore failed on liability.

2. The relevant question was whether conduct in fact caused the dismissal or whether RMT membership, union activities and the earlier trade-union complaint caused it. Although the claimant had committed misconduct, the Tribunal could weigh the history of unlawful treatment, the conduct and knowledge of the decision-makers, and inconsistent disciplinary outcomes. It permissibly concluded that the prohibited considerations tipped the balance towards dismissal rather than a lesser sanction.

3. It was unnecessary to determine whether the complaint under section 152(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992 was independently established. Membership and/or victimisation under section 104 of the Employment Rights Act 1996 were sufficient to sustain the finding of an inadmissible reason.

4. The Tribunal erred in treating its prohibited-reason finding as excluding contribution. Under sections 123(6) and 122(2) of the Employment Rights Act 1996, contribution concerns the causal effect of the claimant's blameworthy conduct on the dismissal, rather than the employer's reason for dismissing.

5. The contribution issue was remitted to the same Tribunal, if practicable, to determine whether the admitted misconduct caused or contributed to the dismissal and, if so, to what extent under the respective statutory tests.

• Employment Appeal Tribunal: Allowed the employer's appeal only on contribution and remitted that issue to the Employment Tribunal.
• Employment Tribunal, London (South): By a reserved judgment promulgated on 17 November 2014, upheld the claimant's automatically unfair dismissal complaints under the Trade Union and Labour Relations (Consolidation) Act 1992 and the Employment Rights Act 1996, rejected the detriment claim, and made no contributory-fault reduction.