Dahou v Serco Ltd

The Court of Appeal dismissed the appellant's challenge to the Employment Appeal Tribunal's allowance of the employer's appeal. The EAT had concluded that the Employment Tribunal had erred in law by failing to engage with and evaluate the employer's explanations and by misapplying the burden of proof under sections 146 and 148 of the Trade Union and Labour Relations (Consolidation) Act 1992. The Employment Tribunal had previously found detriment under section 146(1) and automatic unfair dismissal under section 152, but the EAT held that the tribunal had not made the necessary factual findings on the reasons and purposes operating on the decision-makers' minds.

Key statutory provisions considered were TULR(C)A 1992 sections 146 and 148 and section 152 (relating to automatic unfair dismissal), and the interaction of the prima facie burden of proof with the employer's evidential burden. The Court of Appeal agreed that the Employment Tribunal should have addressed specified explanations given by the employer (including contemporaneous reasons for suspension and safety concerns) and that the absence of such evaluation vitiated the tribunal's conclusions.

This appeal arises from an Employment Tribunal judgment (sent to the parties on 30 August 2013) which upheld two claims by the employee, Mr Dahou: (1) detriment contrary to section 146(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 and (2) automatic unfair dismissal under section 152 of the same Act. The employer suspended and later summarily dismissed the employee following an incident on 6 July 2012 in which the employee swore at his manager and behaved in an angry manner. The employee was an RMT local representative; the employer recognised a different union and there was a contemporaneous threat of strike action during the London Olympics period.

The employer appealed to the Employment Appeal Tribunal which, in [2014] UKEAT 0027_14_1408 (Simler J), allowed the employer's appeal. The EAT held that the Employment Tribunal had identified factors calling for explanation but had not evaluated or explained why the employer's explanations (including concerns about safety, contemporaneous explanations for approach and the involvement of senior management) were insufficient. The EAT concluded that the Employment Tribunal had therefore misapplied the burden of proof under section 148 and had not made the necessary findings about the purposes or reasons of the decision-makers; accordingly its findings of detriment and automatic unfair dismissal could not stand. The EAT remitted the matter to be reheard by a differently constituted tribunal.

The Court of Appeal (Laws LJ, Longmore LJ and Richards LJ) dismissed the employee's appeal against the EAT. The Court agreed with Simler J that the Employment Tribunal had failed to grapple with the employer's case, in particular by not addressing or rejecting the explanatory evidence and by not making findings about the purposes or reasons operating on the minds of the relevant decision-makers. The Court therefore upheld the EAT's approach and its direction to remit for reconsideration. The Court also refused permission to advance the respondent's notice seeking to vary the EAT order in relation to contributory fault and Polkey issues.

Nature of claim/application: employment claims for detriment under TULR(C)A 1992 s146 and automatic unfair dismissal under s152; relief sought was declaration of unlawful detriment and automatic unfair dismissal and consequential remedies. Issues framed by the court: (i) whether the Employment Tribunal erred in its application of the burden of proof under s148 TULR(C)A 1992 and in its factual evaluation of the employer's explanations; (ii) whether the tribunal properly identified the purpose/reason for suspension and dismissal (mind of the decision-maker); (iii) whether the failure to evaluate the employer's case required remission and rehearing. Reasoning: the EAT and Court of Appeal held that once a claimant establishes a prima facie case the employer must be required to explain the purpose or reason; the tribunal must then address and assess those explanations. The original tribunal failed to do so in sufficient detail and so its conclusions could not safely stand.

The appeal is dismissed. The Court of Appeal agreed with the Employment Appeal Tribunal that the Employment Tribunal failed to evaluate and explain why the employer's contemporaneous explanations for suspension and investigation were insufficient, thereby misapplying the burden of proof under sections 146 and 148 TULR(C)A 1992 and invalidating the tribunal's findings of detriment and automatic unfair dismissal; the matter was properly remitted for rehearing and the respondent's notice was not permitted to be advanced.

Employment Tribunal judgment sent to parties 30 August 2013 (Employment Tribunal). Employment Appeal Tribunal allowed the employer's appeal: [2014] UKEAT 0027_14_1408 (Simler J). Appeal to the Court of Appeal dismissed: [2016] EWCA Civ 832.