Was Union Activist’s Sacking Unfair? Tribunal Considers

A recent Employment Appeal Tribunal (EAT) decision (Serco Limited v Dahou) serves as a reminder that an Employment Tribunal (ET) must not substitute its own view of what was an appropriate sanction, given the circumstances of the case in question, for that of the employer. The ET’s job is only to examine whether the employer’s decision was within the range of reasonable responses available to an employer with regard to the particular misconduct of the particular employee.



The case concerned a public sector outsourcing company that was accused of unlawfully sacking a trade union activist as industrial action loomed in the run up to the 2012 Olympics. Following an appeal to the EAT, the employer has won a fresh opportunity to prove that the man was fairly sacked for gross misconduct.



There had been friction between the man and his employer in respect of his active membership of an unrecognised union to which he was said to have tried to recruit colleagues. He was suspended after he was found to have been aggressive towards and sworn at a manager and was summarily dismissed following a disciplinary process.



The ET found that the company’s main purpose in suspending him was to remove him from the workforce at a time when strike action was being planned to coincide with the Olympics. His dismissal was also found to have been automatically unfair under the Employment Rights Act 1996.



In upholding the employer’s challenge to those decisions, the EAT found that the ET had used a ‘too broad brush’ when it came to analysing the company’s motives. It had impermissibly substituted its views of the man’s conduct for those of the employer. The finding of automatic unfair dismissal also could not stand and the case was remitted to a fresh ET for reconsideration.