The law says that workers cannot be penalised for taking part in the activities of an independent trade union. In Serco Ltd v Dahou, the Employment Appeal Tribunal (EAT) held that the burden of proof is not the same in cases relating to detrimental treatment because of trade union activities as it is in discrimination cases.

The RMT instructed Thompsons to represent Mr Dahou.

Basic facts

About six months after starting work for Serco in May 2010, Mr Dahou joined the RMT. From then on he was active in trying to recruit other members among the workforce. In May 2012, he was challenged about holding RMT meetings in company time as it was not the recognised union.

In June he was invited to a meeting where he was told that as he was not a recognised trade union rep, he should refrain from talking to members in the workplace during working hours. He was told to be careful about how he did things relating to the union at work as he could be disciplined and possibly dismissed.

After allegedly swearing at a manager on 6 July, Mr Dahou was suspended on 9 July and summarily dismissed in November 2012 for gross misconduct.

Relevant law

Section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act (TULRCA) states that workers have the right not to be subjected to “any detriment” by any act (or failure to act) if the purpose was to prevent or deter the worker “from taking part in the activities of any independent trade union at an appropriate time, or penalising [them] for doing so.”

Tribunal decision

The tribunal found that although the company had a valid reason for investigating Mr Dahou, it was also possible that the main purpose of suspending him was to remove him from the workplace at a time when the RMT was considering strike action to coincide with the Olympics.

Ultimately, the tribunal was not convinced that the company had discharged the burden of proving that the treatment was not on the prohibited grounds. It therefore concluded that the main purpose of suspending him and of carrying out the misconduct investigation was to prevent him from carrying out the activities of an independent trade union at an appropriate time. For more or less the same reasons, the tribunal found that he had been unfairly dismissed.

EAT decision

However, the EAT overturned that decision. It held that if the tribunal was not satisfied by the company’s argument that the reason it suspended and dismissed Mr Dahou was for misconduct, it did not “as a matter of law or logic” have to conclude that the main purpose was an improper one under section 146(1)(b).

Having failed to adopt the correct statutory test, the tribunal had treated the burden of proof in exactly the same way as it would in a discrimination case. That is, it had required the company to show that the “improper purpose” played no part whatever in their actions and when it failed to do that, concluded that the “treatment was on the prohibited grounds”. Instead, it should have looked at the evidence, the findings of fact and the inferences that could be drawn from those facts to decide the company’s main “purpose”.

The tribunal’s failure to follow the statutory language and the adoption of too “broad-brush” an approach contributed to its failure to make proper findings and the EAT therefore remitted the case to a differently constituted tribunal to be reheard.