University of Bolton v Corrigan

For a detriment claim under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992, once the worker establishes a prima facie case, the employer must show its sole or main purpose under section 148. The employer’s failure to establish its asserted non-union purpose can therefore found liability.

The position differs for automatic unfair dismissal. An employer’s failure to prove redundancy or another potentially fair reason does not require a finding that the dismissal was for trade union activities. The tribunal must determine the actual reason or principal reason from all the evidence and permissible inferences.

The Claimant was the branch secretary of UNISON and worked in Library Services. During a restructuring exercise, her post and other posts were deleted. A proposed User Services Team Leader post, for which she had a good prospect of redeployment, was later removed. The Employment Tribunal found that its removal was a detriment imposed for the sole or main purpose of preventing or penalising trade union activity.

The Tribunal also held that the Claimant’s later redundancy dismissal was automatically unfair under section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992. The University appealed. The central issue was whether the Tribunal had wrongly inferred the asserted trade-union reason for dismissal merely because it rejected redundancy as the employer’s reason.

1. The appeal was allowed in part. The appeal against the section 146 detriment finding was dismissed. The appeal against the finding of automatic unfair dismissal under section 152 was allowed, and the unfair-dismissal claim was remitted for rehearing before a differently constituted Employment Tribunal.

2. The Tribunal had adopted the correct approach to the detriment claim. Once the Claimant established a prima facie case under section 146, section 148 required the University to show the sole or main purpose of withdrawing the proposed post. The Tribunal was entitled to rely on circumstantial evidence. Its conclusion that the University had not established redundancy as its principal purpose was sufficient to uphold the detriment claim.

3. The Tribunal erred by treating the failure to establish redundancy as establishing the Claimant’s competing allegation of dismissal for trade union activities. Under section 98(1) of the Employment Rights Act 1996, that failure ordinarily establishes unfair dismissal. It does not, without a factual finding of the actual reason, establish automatic unfair dismissal under section 152. As explained in Kuzel v Roche Products Ltd [2008] IRLR 530, the true reason may be that advanced by the employee, but need not be.

4. The Tribunal’s alternative observation that the dismissal would have been unreasonable even if a fair reason had been established was unsupported by its reasoning and was set aside.

5. Remittal to a fresh Tribunal was required. The original Tribunal’s factual findings, including the detriment finding, remained in place. However, the unfair-dismissal issue required a different legal inquiry and included events after the detriment. There was a real risk that justice would not be seen to be done if the same Tribunal reconsidered its prior conclusion.

• Employment Appeal Tribunal — allowed the appeal against the automatic unfair-dismissal finding, dismissed the appeal against the section 146 detriment finding, and remitted the unfair-dismissal claim to a differently constituted Employment Tribunal.
• Employment Tribunal — judgment sent to the parties on 6 May 2014. It upheld the Claimant’s section 146 detriment claim and held her dismissal automatically unfair under section 152.