Reason for detriment
Labour & European Law Review Weekly Issue 500 14 December 2016
If a worker complains that they have been penalised for taking part in the activities of an independent trade union, the employer has to establish the main purpose for what they did (or did not do). In Serco Ltd v Dahou, the Court of Appeal held that even if the employer fails to establish the reason for dismissal, that does not automatically mean that the reason has to be the one put forward by the employee.
Mr Dahou’s union, the RMT, instructed Thompsons to act on his behalf.
Mr Dahou was the local rep for the RMT members at his workplace. However, Serco did not recognise the RMT, having entered into a voluntary recognition agreement with another union, Community, in March 2012.
In June 2012, Mr Dahou was invited to a meeting where he was told that as he was not a recognised trade union rep, he should not talk to members in the workplace during working hours. 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.
He brought a claim for detrimental treatment contrary to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).
Section 146(1)(b) 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.”
Section 148 states that “[o]n a complaint under section 146 it shall be for the employer to show what was the sole or main purpose for which [they] acted or failed to act.”
Decisions of lower courts
The tribunal held that the company had failed to discharge the burden of proving that the treatment was not on the prohibited grounds. It therefore concluded that the main purpose of suspending Mr Dahou 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, it also found that he had been unfairly dismissed.
The EAT, however, overturned that decision on the basis that 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, made findings of fact on the basis of direct evidence or by reasonable inferences that could be drawn from those facts to decide the company’s main “purpose”.
Decision of Court of Appeal
And the Court of Appeal agreed, holding that the EAT had “reached the right result for the right reasons”.
In particular, it held that even if an employer fails to establish the reason for dismissal, that does not automatically mean that the reason must therefore be the one put forward by the employee. Although this would probably happen in most cases, it could not be guaranteed.
Indeed, the Court held that as tribunals could find that they did not agree with the reason advanced by either side for the dismissal following the decision in Kuzel v Roche Products Ltd, it was logical that this reasoning should also apply to detriment cases.