In Dahou v Serco Ltd, Mr Dahou alleged that he had not been dismissed for the gross misconduct alleged but due to his trade union activities.
It is automatically unfair to dismiss an employee for certain trade union activities. Once an employee has raised evidence which appears to show there has been a detriment/dismissal due to certain trade union activities, it is for the employer to show what the reasons were for its actions.
Initially, the Employment Tribunal found that the employer, Serco Ltd, had failed to establish that the dismissal was for the reasons given by the business and upheld Mr Dahou’s claims.
However, in a recently published Judgment, the Court of Appeal ruled that an employer’s failure to show the reason for the detriment does not necessarily mean that the reason for the dismissal must be the reason asserted by the employee. While the Court conceded that this will often be the case, it stressed that it was not guaranteed.
The Court of Appeal found that an Employment Tribunal may, where it sees fit, find that the real reason for dismissal was not the one advanced by either side even in cases of alleged automatically unfair dismissal.
As the Court recognised, this is an unusual case and employers should always ensure that any dismissals are made for fair and justifiable reasons, with reasons set out in a clear manner using relevant evidence to support them.