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Serco employed Mr Dahou for approximately two years before he was dismissed for gross misconduct. Mr Dahou claimed that the real reason for his dismissal was his membership and/or participation in trade union activities. The tribunal upheld part of Mr Dahou’s claim for detrimental treatment and his claim for automatically unfair dismissal. Serco appealed. Before both the tribunal and the Employment Appeal Tribunal (EAT) Serco was represented by Mark Sutton QC and Mr Dahou by Ms Louise Chudleigh, both of Old Square Chambers.
In the EAT, before the Honourable Mrs Justice Simler DBE, Serco succeeded in nine of its twelve grounds of appeal and the case was remitted to a differently constituted tribunal to be reheard (Mrs Justice Simler preferring not to express a view on ground ten and, in light of other conclusions, considering it unnecessary to consider grounds eleven and twelve).
The case is of particular interest because of the EAT’s explanation of the correct approach to the burden of proof in cases of detrimental treatment on grounds related to union membership or activities, contrary to s.146(1) TULRCA 1992.
Serco’s position was that the tribunal had misapplied the burden of proof by failing to evaluate its explanation for Mr Dahou’s treatment and/or to make relevant findings of fact. The EAT agreed and found that the tribunal’s reasoning, following the guidance in Yewdall v SSWP UK EAT/0071/05/TM and Kuzel v Roche Products Ltd  ICR 799, was deficient in a number of regards (see paragraphs 61 to 71 of the judgment).
One of the EAT’s main criticisms was that if the tribunal was not persuaded that Serco had discharged the burden of proving that its main purpose in acting as it did was to address Mr Dahou’s misconduct, it did not follow “as a matter of law or logic” that its main purpose was an improper purpose (paragraph 71).
By reaching such a conclusion the EAT believed that the tribunal had incorrectly treated the burden of proof as operating as it would in a discrimination case (so that it required the respondent to show that the improper purpose played no part in its actions and if it couldn’t, the tribunal was entitled to draw a mandatory inference that the treatment was on prohibited grounds). The EAT emphasised that such an approach was incorrect, instead, if the tribunal was not satisfied by Serco’s evidence, the tribunal should have determined the main purpose of its actions by reference to the evidence, the findings of fact and the inferences that could properly be drawn from those facts.
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