Labour & European Law Review Weekly Issue 322 06 June 2013
The law says that employees can apply for interim relief if they can show it was “likely” that they were dismissed because of their trade union membership or activities. In London City Airport Ltd v Chacko, the Employment Appeal Tribunal (EAT) said that the employee just has to show that the principal or sole reason for their dismissal was their trade union activities, irrespective of any allegations that the employer makes about their conduct.
Mr Chacko, who started work for his employer in December 2004, joined a trade union in 2007 and subsequently became an “active and vigorous” representative at his workplace.
Between 2007 and 2012 he initiated a number of grievances which were dealt with under the employer's grievance procedures. Toward the end of July 2012 one of Mr Chacko's supervisors claimed that Mr Chacko was bullying and harassing him.
On 10 August 2012, Mr Chacko's trade union wrote to the employers indicating that he would be involved in a ballot seeking recognition of the trade union at the employer's workplace. On 13 August 2012 Mr Chacko was suspended while an investigation was carried out into his supervisor’s allegations. He was dismissed on 31 August 2012.
He then lodged a claim that the dismissal was unfair. He also asked the tribunal to make an order for interim relief on the basis that the main reason for his dismissal was because of his trade union activities. If successful, Mr Chacko’s employers would have to continue to pay him as though his contract had not ended until his unfair dismissal claim was heard.
The employment judge made clear that the sole issue for him to decide at the application for interim relief was whether Mr Chacko was “likely” to succeed in a claim that the reason or principal reason for dismissal was his trade union activities.
He looked at the speed of the employer’s disciplinary process in contrast to the time that they took to respond to Mr Chacko’s grievances and found the difference “most startling". Noting that more serious allegations had been made against other employees who had not been disciplined or dismissed, the judge said that the employer had not been consistent in the way they had sanctioned different employees.
On that basis, the judge concluded that Mr Chacko’s claim was likely to succeed and granted the interim order. The employer appealed, arguing that the judge had either "misconstrued or misapplied the statutory test" or "acted perversely".
The EAT, however, disagreed. Although there had been controversy in the past about the correct approach to be applied to the meaning of "it is likely", it held that case law had established that the employee just had to demonstrate that they had a pretty good chance of succeeding in the main hearing.
In this case, it rejected the argument that the tribunal judge had not adequately considered allegations about misconduct or that Mr Chacko would need to show some sort of sophisticated conspiracy to succeed in his claim.
The judge was perfectly entitled to rely on evidence that the employer was unequivocally against trade union recognition in order to identify a connection between the dismissal and Mr Chacko’s trade union activities.. He was also obliged to have regard to the fact that Mr Chacko had produced two certificates from his trade union stating that his dismissal was on trade union grounds.
Acknowledging that applications for interim relief have to be decided at hastily convened summary hearings at which the parties put forward what documents they can produce at short notice, and which are scrutinised much less carefully than at the full hearing of the claim, the EAT said that judges could only do the best they could in the circumstances.
The fact that the employer might be prejudiced by delay or the financial impact of the order that they had to continue paying Mr Chacko’s salary was irrelevant.
Claims for interim relief will only succeed if the tribunal sees evidence that the claim for automatic unfair dismissal is likely to succeed. The statutory test needs no further gloss. It is a wide discretion for a tribunal to determine on the evidence available to it, and the judge’s decision is unlikely to be overturned on an appeal to the EAT.