“By its judgment, the Employment Tribunal upheld Mr Dahou’s claim that he had been subjected to detrimental treatment relating to his suspension and misconduct investigation, and automatically unfairly dismissed, on grounds relating to his participation in trade union activities. It rejected other claims of detriment and there is no cross appeal in relation to these conclusions. The Tribunal made no findings in relation to ordinary unfair dismissal.”
“A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of— … (b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so … (2) In subsection (1) “an appropriate time” means — (a) a time outside the worker's working hours, or (b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union … and for this purpose “working hours”, in relation to a worker, means any time when, in accordance with his contract of employment (or other contract personally to do work or perform services)], he is required to be at work.” (b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so … (a) a time outside the worker's working hours, or (b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union … and for this purpose “working hours”, in relation to a worker, means any time when, in accordance with his contract of employment (or other contract personally to do work or perform services)], he is required to be at work.”
“(1) On a complaint under section 146 it shall be for the employer to show what was the sole or main purpose for which he acted or failed to act. … 152 (1) For purposes ofPart X of the Employment Rights Act 1996 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee – ... (b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time . . .”
“At the meeting you were given a clear instruction that you should immediately cease the carrying out of trade union activities on behalf of an unrecognised union during work time and on company premises. You were also informed that any failure to follow this instruction may result in disciplinary proceedings being instigated against you.”
“At approximately 2:30pm on Friday,6 July 2012 , you were approached by myself and Carol Butler, HR business partner, and asked questions about a claim for payment you had submitted earlier that day for Bank Holidays worked in April / May 2012, an application for unpaid leave for13 July 2012 , your failure to provide job cards for the previous few days and your absence from work for a period of two-and-a-half hours the previous day. These were perfectly reasonable questions, to which you responded in a totally irrational manner. You began shouting and you called me a ‘fucking liar’ in front of and within earshot of your colleagues and other members of staff. Your behaviour was perceived as aggressive, intimidating and totally unwarranted. You appeared to be sweating profusely and you were shaking. As a consequence of your apparent volatile behaviour and our genuine concern for your safety and welfare (especially given you have only recently returned from a period of absence for work related stress) and the safety and welfare of your co-workers I have taken the decision to suspend you with immediate effect. The period of suspension will be on full pay and is not punitive in nature. We would ask that you do not attempt to enter any circa of premises during this time. We will write to you in due and in any event before close of business on Friday13 July 2012 to advise you on the next course of action.”
“Claimant – ‘You swore at me the other day and you was in the wrong.’ Mr Caffrey – ‘No I didn’t.’ Claimant – “Oh no you didn’t, don’t talk to me”
“The allegation you will be required to address is that at approximately 2:30pm on Friday,6 July 2012 you were approached by Mick Caffrey… and Carol Butler… and asked about some work-related matters. Your response to questions was allegedly irrational and you began shouting and you called Mick Caffrey a ‘fucking liar’ in front of other members of staff. Your behaviour was allegedly perceived as aggressive, intimidating and totally unwarranted. Please find enclosed copies of witness statements. This behaviour is considered so serious as to amount to a gross misconduct. If this allegation is proven against you, you may be liable to summary dismissal i.e. dismissal without notice or payment in lieu of notice.”
“In the hearing you admitted from the outset that you had used the language complained of and had called your manager a ‘fucking liar,’ but despite this you denied that you were intimidating or angry, stating that you were simply frustrated. You agree, however, that the impact on your behaviour could have been intimidating. During the hearing itself you also became easily agitated and your representative had to try to calm you down. Overall based on the available evidence, I believed that you had behaved in the way alleged on6 July 2012 in that you were angry, had used foul language and had behaved in a way that was aggressive and intimidating. At the hearing I advised you that my decision was that the allegation levelled against you was proven but that I wanted to take the time to consider the sanction that should be imposed and the mitigation that you provided. In particular, this related to ongoing issues within your personal life, your relationship with Mr Caffrey, your length of service and previous conduct. I have considered all of the matters that you raise, but note that, despite these points and your acceptance that you had spoken to your manager in the way alleged, you fail to show any remorse for your actions or demonstrate that you understood your behaviour was not acceptable. On the contrary, when you were represented it was suggested you were remorseful. You interjected and said this was not in fact the case; you did not regret what you had said and you felt that your behaviour was justified. This was a serious incident for which you were wholly responsible: aggressive and intimidating behaviour coupled with foul and abuse language and calling your manager a ‘fucking liar’ in an area and within earshot where another manager and employees were present is wholly unacceptable behaviour and in my judgment amounts to gross misconduct. I have also consulted the Serco disciplinary policy. Therefore my decision is to summarily dismiss you with effect from Friday,21 December 2012 without notice or pay in lieu of notice.”
“I find that swearing directly to a manager in what is perceived to be an aggressive and intimidating manner is gross misconduct. You have shown no remorse. I therefore conclude that the decision to dismiss without notice for gross misconduct was fair and I do not deem it to be too harsh a penalty.”
“54. The Tribunal reached its conclusions on the basis of the essential reasoning that follows. So far as the detriment claims are concerned: (a) The only detriment in respect of which any arguable case had been raised by the Claimant was detriment item K (suspension on 6 July and the misconduct investigation that followed). There is no cross-appeal in relation to the dismissal of the remaining allegations not found to be detriments for these purposes. (b) At paragraph 144, the Employment Tribunal found that although on the face of it there was misconduct to investigate as the Claimant had sworn at Mr Caffrey and acted aggressively towards him, the Claimant had raised an arguable case that at least the main purpose of suspending him was to remove him from the workforce at a time when strike action was contemplated to coincide with the Olympics. (c) The Employment Tribunal then identified six factors that ‘called for an explanation’. These were: (144.1) the timing of the 6 July incident which was the day after the strike ballot opened; (144.2) Mr Caffrey’s statement that there was a need to manage the Claimant’s behaviour during the Olympic period and his reference to the Claimant’s role in the threatened strike; (144.3) Mr Caffrey’s failure to tell Ms Butler that there was an explanation for the Claimant working Bank Holiday Monday and allowing her instead to question him about this when he had previously been accused of fraudulent overtime claims; (144.4) Mr Caffrey’s denial of swearing when the Tribunal found he did so; (144.5) Mr Whitefoot’s involvement immediately after the incident given his role and the fact that this was “a relatively straightforward disciplinary issue about an employee swearing at a manager”; (144.6) The severity of the reaction to the incident given the apparent general tolerance of swearing (e.g. Mr Caffrey and Ms Butler). (d) Having identified those factors, at paragraph 145 the Employment Tribunal stated that it “considered whether the Respondents had discharged the burden of proving that the treatment was not on the prohibited grounds and concluded that they had not”
‘The Tribunal did not consider that any point arose as to the timing of any union activities, to the extent that the Respondents were seeking to prevent or deter the Claimant from taking part in these. Although, as identified in paragraph 73 above, there had been some challenge about when the Claimant had been carrying out such activities, there was no evidence from which the Tribunal could conclude that he had in fact been doing so at an inappropriate time. Nor was there any evidence to suggest that, had he not been suspended, he would have been doing this at an inappropriate time.’ (g) At paragraph 147: ‘The Tribunal concluded that the main purpose of suspending the Claimant 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. The Complaint of detriment under point K was therefore well founded.’ 55. So far as the question of automatic unfair dismissal was concerned, the Tribunal’s reasoning and conclusions were as follows: (a) At paragraph 150 the Tribunal stated that it ‘concluded that, for substantially the same reasons as given in relation to item K, the Respondent had failed to prove the reason or principal reason for dismissal on which they relied. The Tribunal found that Mr Anderson’s evidence about the letter of14 November 2012 showed that he was not acting independently in the disciplinary process, and was following the directions of the Respondent’s HR department. In particular, it could be seen that again Mr Whitefoot was involved: he had approved the 14 November letter’. (b) At paragraph 151 the Tribunal stated that it took account of the points set out at paragraphs 144 and 145, and its finding that the Respondent had not discharged the burden of proof in relation to the detriment complaint. It went on to state: ‘The decision to dismiss the Claimant followed directly from the suspension and decision to investigate the conduct allegations. In spite of the evidence from Mr Anderson and Mr Whitefoot, the Tribunal found it improbable that the latter had not influenced the decision to dismiss the Claimant. The only identifiable reason why Mr Whitefoot would do so was the Claimant’s union activities. On 8 June Mr Whitefoot had predicted or threatened disciplinary proceedings that would be delayed until after the Olympics (paragraph 75 above). He was closely concerned with trade union issues and the risk of a strike in particular.’ (c) The Tribunal accordingly concluded that: ‘… The principal reason for the Claimant’s dismissal was that he had taken part or proposed to take part in the activities of an independent trade union at an appropriate time and the dismissal was therefore automatically unfair.’ (d) Contributory fault and Polkey were held not to apply because the Employment Tribunal had rejected the Respondent’s stated reason for dismissal.” (a) The only detriment in respect of which any arguable case had been raised by the Claimant was detriment item K (suspension on 6 July and the misconduct investigation that followed). There is no cross-appeal in relation to the dismissal of the remaining allegations not found to be detriments for these purposes. (b) At paragraph 144, the Employment Tribunal found that although on the face of it there was misconduct to investigate as the Claimant had sworn at Mr Caffrey and acted aggressively towards him, the Claimant had raised an arguable case that at least the main purpose of suspending him was to remove him from the workforce at a time when strike action was contemplated to coincide with the Olympics. (c) The Employment Tribunal then identified six factors that ‘called for an explanation’
“Contributory fault and Polkey do not arise because the Tribunal has rejected the respondent’s stated reason for dismissal.”
"We nevertheless find that, although clearly this is not necessarily a binding way for a tribunal to approach this statute, a very sensible way to do so would be to follow this structure which, in effect, follows the route of the Act as we see it to be: (i) have there been acts or deliberate failures to act by an employer? On this, of course, the employee has and retains the onus; (ii) have those acts or deliberate failures to act caused detriment to the employee? (iii) are those acts in time? (iv) in relation to those acts so proved which are in time, where detriment has been caused, the question of what the purpose is then arises. We are satisfied that Mr Russell was right to concede - and, in any event, this is our judgment - that there must be establishment by a Claimant at this stage of a prima facie case that the acts or deliberate failures to act which are found to be in time were committed with the purpose of preventing or deterring or penalising i.e. the illegitimate purpose prohibited by s146 (1) (b). This gives the same mechanism to sections 146 and 148 of TULR(C)A as is provided, for example, bysection 63A of the Sex Discrimination Act 1975 , where the onus of proof only passes to the employer after the establishment of a prima facie case of unfavourable treatment on discriminatory grounds by the employee which requires to be explained. Once it requires it to be explained, then the burden passes to the employer. Plainly that, in our judgment, is correct in this case. Otherwise the employer will have the burden of giving some explanation in a case where it is not clear what it is he has to explain. It must be clear, and we agree with Mr Russell's concession and with Mr Powell's submission, that there is a case made out at the prima facie stage that the acts complained of, with the resultant detriment, were on the case for the Claimant for the purpose of preventing or deterring or penalising in respect of trade union activities. Once that prima facie case is established, then the burden passes to the employer under s148."
“The first sentence appears to overstate paragraph 24 of Yewdall. The mechanism may be similar, but that does not mean that it operates in the same way, and nor is this what the Employment Appeal Tribunal said.”
“What was required was for the Tribunal to determine what the main purpose was of each relevant decision-maker, as a matter of fact, on the basis of evidence and permissible inferences. It was not enough that the Claimant was linked to the threatened strike; or that it was convenient to have him out of the way. It did not do this. For all these reasons, I am persuaded that the Tribunal erred in law in its approach to the burden of proof. It was not entitled to conclude that the burden of proof had not been discharged by the Respondent in this case, without first considering the explanations given by the Respondent as identified in its own findings of fact. Nor was it entitled to proceed from that conclusion without more, to a conclusion that the Respondent had an improper purpose.”
“In light of my conclusions on grounds 1 to 5 above, and given the Tribunal's conclusion that for substantially the reasons given at paragraph 144 to 146 the Respondent had failed to prove the reason or principal reason for the dismissal on which it relied, the Tribunal's conclusion that the dismissal was automatically unfair cannot stand.”
“Particularly stark is the absence of any evidence to support a finding that Mr Cadger was influenced or affected by any improper purpose of the others, or of his own. Instead, the Tribunal dealt with these separate acts together and without any focus at all on Mr Cadger's role in the latter decision.”
“146. The Tribunal did not consider that any point arose as to the timing of any union activities, to the extent that the respondents were seeking to prevent or deter the claimant from taking part in these. Although, as identified in paragraph 73 above, there had been some challenge about when the claimant had been carrying out such activities, there was no evidence from which the Tribunal could conclude that he had in fact been doing so at an inappropriate time. Nor was there any evidence to suggest that, had he not been suspended, he would have been doing this at an inappropriate time. 147. The Tribunal concluded that the main purpose of suspending the claimant and of carrying out the misconduct investigation was to prevent him carrying out the activities of an independent trade union at an appropriate time. The complaint of detriment under point K was therefore well founded.”
“Ms Chudleigh accepts that the conclusion at paragraph 146 was a critical stage in the reasoning that led to the Tribunal's conclusion at paragraph 147. However, she submits that no point arose on the question of 'appropriate time' because the Claimant was not relying on a discrete event, but on the fact that he was an RMT activist known to be involved in the threat of strike action. It was this concern that led to his suspension and dismissal. I cannot accept that this adequately answers the point given that the statutory protection applies to activities at an appropriate time, and this could only have been outside working hours in this case given the RMT's lack of recognition. The Tribunal side-stepped the question whether such concerns as the Respondent had were based on illegitimate trade union activity. Ms Chudleigh submits that it is unfair to say that the Tribunal did not consider what purpose motivated the Respondent in light of the conclusion at paragraph 147. But this is no answer to the criticism of paragraph 146. The conclusion at paragraph 147 was only possible as a consequence of the way the Tribunal approached the matter at paragraph 146. If that approach was in error of law, it vitiates the conclusion at paragraph 147.”
“I have considered whether in the circumstances of this case justice requires that the matter should be remitted to a different and differently constituted tribunal, recognising the hardship that this will entail for the Claimant having to start again. Despite this undoubted hardship, I am satisfied that given the basis on which this appeal is allowed, and in light of the errors identified, which permeate the reasoning as a whole, that is the appropriate course to adopt.”
“4.2(3) The impact of remission to a differently constituted panel, including the hardship faced by the claimant, was apparent to the learned judge and was weighed in the exercise of her discretion, but the interests of justice were clearly the paramount consideration. The Tribunal’s approach having been criticised on a number of grounds which permeated its reasoning as a whole, it would clearly be unfair to expect the Tribunal to reconsider the complaints with fresh eyes, unaffected by their own earlier determinations. To use Burton J’s expression, a ‘rethink’ would be impractical. A reconsideration before the same Tribunal would not, from Serco’s perspective, meet the requirements of a fair hearing. 4.2(6) Simler’s J decision on this issue is essentially a matter of case management discretion. Absent any error in principle, it is respectfully submitted that the challenge to the decision on disposal should be considered in the light of the guidance inCPR Part 52.11 .14. The decision on remission plainly fell in the scope of the learned judge’s discretion and there are no persuasive grounds for disturbing the same.”
“In the result accordingly, I have concluded that this appeal must be allowed on grounds 1 to 9 above. In those circumstances it is unnecessary to consider grounds 11 and 12 which raise specific complaints about the way the Tribunal dealt with contribution and Polkey. These points, and the issue of ordinary unfair dismissal which was not determined, will have to be reconsidered.”
Showing the 50 most senior of 111.