Dahou v Serco Ltd

Under Trade Union & Labour Relations (Consolidation) Act 1992, the relevant purpose for detriment and the relevant reason for dismissal are the factors operating on the mind of the decision-maker. Once an employee raises a prima facie case, the employer must prove its asserted purpose or reason.

An Employment Tribunal must make a reasoned assessment of the employer’s material explanations. It cannot infer an unlawful trade-union purpose merely because the employer has not proved its case. It must also determine whether the activity which the employer sought to prevent or deter was, or was understood to be, at an appropriate time. Where errors permeate the tribunal’s reasoning, remission to a differently constituted tribunal may be required.

The employee was a mechanical technician and local representative of the RMT at the London Cycle Hire Scheme. The employer did not recognise that union. Following an incident in which the employee swore at his manager and was said to have behaved aggressively and intimidatorily, he was suspended, investigated and summarily dismissed for gross misconduct.

The Employment Tribunal upheld claims for trade-union detriment under section 146 and automatic unfair dismissal under section 152 of the Trade Union & Labour Relations (Consolidation) Act 1992. It found that the main purpose of the suspension and investigation, and the principal reason for dismissal, was to prevent trade-union activities during the period of a threatened Olympic strike. The Employment Appeal Tribunal allowed the employer’s appeal in [2014] UKEAT 0027_14_1408 and remitted the case to a differently constituted tribunal.

The employee appealed. The central issue was whether the Employment Appeal Tribunal was right to find that the Employment Tribunal had failed to evaluate the employer’s explanations and had inadequately addressed the statutory requirement of activity at an appropriate time.

1. Appeal dismissed unanimously. Laws LJ held, with whom Longmore and Richards LJJ agreed, that the Employment Appeal Tribunal had reached the right result for the right reasons.

2. For both detriment under sections 146 and 148 and automatic unfair dismissal under section 152 of the Trade Union & Labour Relations (Consolidation) Act 1992, the statutory purpose or reason consists of the factors operating on the relevant decision-maker’s mind. The employee must first raise a prima facie case, or, in a dismissal case, an issue warranting investigation and capable of establishing the prohibited reason. The employer must then prove the purpose of its act or the reason for dismissal.

3. The Employment Tribunal had not performed the necessary task. It identified circumstances said to require explanation but failed to assess the employer’s evidence explaining them, including the asserted concerns about aggressive and volatile conduct, staff safety, the manager’s involvement and the seriousness of the incident. A tribunal is not entitled to ignore potentially relevant explanations or reject them without consideration and a proper evidential basis. In a case alleging that an employer fabricated a disciplinary basis for action, a reasoned assessment may necessarily require close attention to the detail.

4. The failure to prove an asserted purpose or reason does not logically require acceptance of the employee’s asserted prohibited purpose or reason. It may often lead to that result, but the tribunal must decide the true purpose or reason on the whole evidence and permissible inferences.

5. The Employment Tribunal had also wrongly side-stepped the statutory requirement that protected trade-union activity occur at an appropriate time. Since the RMT was unrecognised, activity during working hours could not be protected on the facts stated. The tribunal had to address whether the employer’s concerns related to activity at an appropriate time.

6. The errors permeated the reasoning. Remission to a differently constituted Employment Tribunal was within the Employment Appeal Tribunal’s case-management discretion and was appropriate in the interests of a fair rehearing. Questions of contributory fault, any Polkey reduction and ordinary unfair dismissal were left for determination on remission if properly raised. Permission to advance the respondent’s notice was refused.

• Court of Appeal (Civil Division): dismissed the employee’s appeal and upheld remission to a differently constituted Employment Tribunal: [2016] EWCA Civ 832.
• Employment Appeal Tribunal: allowed the employer’s appeal on grounds 1 to 9, set aside the Employment Tribunal’s conclusions, and remitted the case to a differently constituted tribunal: [2014] UKEAT 0027_14_1408.
• Employment Tribunal: upheld the employee’s claims for trade-union detriment and automatic unfair dismissal; the judgment was sent to the parties on 30 August 2013. No citation was stated.