Watson v London Metropolitan University

Where a worker establishes a prima facie case that a detriment was imposed for a prohibited trade-union purpose, the employer must prove on the balance of probabilities that its sole or main purpose was an unprohibited one. The tribunal must assess the decision-maker’s evidence and all surrounding circumstances to determine the true purpose.

Evidence of anti-union animus and defects in a disciplinary process may be relevant, but neither is necessarily decisive. The employer need not prove that every aspect of its decision-making was satisfactory. It must establish the genuine purpose for which the detriment was imposed.

The claimant, an active UNISON branch chair employed by the respondent university, received a first and final warning following an investigation into the recruitment of a colleague. He alleged that the warning was a detriment imposed to deter or penalise his trade-union activities, contrary to section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992.

The Employment Tribunal at Watford rejected the complaint after finding that the university had shown that the warning was imposed because of the claimant’s conduct concerning the recruitment and investigation, rather than for a prohibited trade-union purpose. The claimant appealed, alleging misapplication of the reverse burden of proof, perversity and inadequate reasons concerning dishonesty.

1. Appeal dismissed. The Employment Tribunal correctly applied the burden imposed by section 148(1) of the Trade Union and Labour Relations (Consolidation) Act 1992. Once the university conceded a prima facie case, it had to prove on the balance of probabilities that the warning’s sole or main purpose was an unprohibited one.

2. The tribunal was entitled to determine that question by assessing Professor McCaffery’s evidence, the surrounding circumstances and the inferences properly drawn from them. Although its comparison of factors could more precisely have been framed as factors supporting or undermining the university’s asserted purpose, that formulation made no difference where only two possible purposes were advanced.

3. The tribunal had considered the evidence of anti-union animus, including the emails expressing hostile attitudes, and the errors in upholding the dishonesty allegation. It was nevertheless entitled to find that the university’s genuine concern about the recruitment process, the claimant’s inconsistent responses and the apparent favouritism were the principal reasons for the warning.

4. The university did not need to show that every feature of its disciplinary decision-making was satisfactory. Deficiencies in that process were relevant evidence on the true purpose, but were not decisive. There was ample evidential material for the tribunal’s finding that the claimant had been dishonest in responding to questions about the recruitment, despite the disciplinary decision-maker’s confused treatment of the particular charge.

5. The finding as to purpose was open to the tribunal and was not perverse.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the Employment Tribunal’s rejection of his complaint under section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992.
• Employment Tribunal (Watford): after a five-day hearing, rejected the complaint in a decision sent to the parties on 5 February 2014.