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Detriment as a result of trade union activities: The burden of proof

Where a claimant claims that they suffered detrimental treatment related to trade union activities, it is for the employer to show the sole or main purpose for which it acted or failed to act, i.e. the “burden of proof” is on the employer. The Court of Appeal has recently held that if an employer fails to persuade a Tribunal that its reason (unrelated to trade union activities) was the actual reason for the detriment, it does not automatically mean the Tribunal must hold that the reason was related to trade union activities and was therefore unlawful.

Mr Dahou was employed by Serco as a team leader mechanic, working on the London Cycle Hire Scheme (LCHS), otherwise known as the “Boris bikes”. He was also the local trade union representative for the National Union of Rail, Maritime and Transport workers (RMT). Serco recognised the RMT within LCHS and the material events took place in the run up to the London Olympics, during which RMT were threatening to strike at the premises of the LCHS.

In July 2012, Mr Dahou was alleged to have sworn at his manager and behaved in an aggressive and intimidating manner. He was suspended. Serco said that the reason for his suspension was so that a misconduct investigation could take place. However, Mr Dahou said that this was a pretext and that the real reason for suspending him was to remove him from the workforce at a time when strike action was contemplated to coincide with the Olympics. In December 2012, following the completion of the misconduct investigation, Mr Dahou was summarily dismissed for gross misconduct.

Mr Dahou brought a complaint which included an allegation that he suffered detrimental treatment related to trade union activities. The Employment Tribunal held that the burden of proof in these types of cases worked in the same way as in discrimination cases. This would mean that, where the employer does not successfully establish its reason for the treatment, there is an inference that the reason must be related to trade union activities. The Tribunal found that Serco had failed to establish that its reason for the treatment was the real reason and on that basis, it upheld Mr Dahou’s complaint relating to his suspension and the misconduct investigation.

The EAT found that the Tribunal had misapplied the law and the Court of Appeal agreed.

The EAT and Court of Appeal clarified that the key is to identify Serco’s “sole or main purpose” for the treatment. This will depend on the findings of fact as well as inferences drawn from those facts. It did not follow “as a matter of law or logic” that if the tribunal rejected Serco’s purported purpose for the suspension, in this case the misconduct investigation, it must necessarily find that the purpose was the one asserted by the Mr Dahou, namely because of the contemplated strike action. Depending on the Tribunal’s findings of fact, it could conclude that the real reason was not one advanced by either side. The Court of Appeal did however acknowledge that, in practice, it is likely in such circumstances that the employee’s reason will be found to be the real one but this is not a foregone conclusion.

Comment

This decision is a useful reminder of the way claims for detrimental treatment related to trade union activities will be considered by the Tribunals This clarification is a positive one for employers, since they will not face an automatic finding against them if they do not prove their case.

The Court of Appeal also emphasised that where there are allegations of bad faith and collusion, a tribunal must give “careful consideration of the decision makers’ mental processes”. It is therefore important to ensure that proper evidence is put forward to support the reasons given for an employer’s actions.

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further