effective on 6th November 2012. He would not be permitted to resile from that position.
Essentially this means that an employment tribunal may not determine issues which are not in dispute between the parties. Going further, HHJ Peter Clark suggested that an employment tribunal should not even go as far as to express an opinion on matters not in dispute.
Detrimental treatment and the burden of proof
19 August 2014
In a case of detrimental treatment related to union activities, contrary to s.146 TULRCA 1992, does the burden of proof operate as in a discrimination claim?
We are grateful to Daniel Barnett for this summary of the EAT decision in Serco v Dahou.
Mr Dahou claimed the reason for his dismissal was not gross misconduct but union activity. The employment tribunal upheld part of his claim for detrimental treatment and automatically unfair dismissal. Serco appealed and the case was remitted to a fresh employment tribunal. Serco’s position was that the employment tribunal misapplied the burden of proof by not evaluating its explanation for Mr Dahou’s treatment. The EAT agreed; it did not follow “as a matter of law or logic” that Serco’s purpose was improper just because the employment tribunal was not persuaded that its actions were to address misconduct. The employment tribunal had taken the burden of proof as in a discrimination case (where prohibited treatment can be inferred unless the respondent demonstrates otherwise) rather than determining Serco’s purpose by reference to evidence and inferences. This supports the decision in North Essex Partnership NHS Foundation Trust v Bone that detriment requires the employer to have acted (or deliberately failed to act) to deter union participation, this effect being foreseeable is not enough.
Age Discrimination and Voluntary Early Retirement
Was a failure to allow an employee to change her choice of voluntary redundancy to redeployment (in the hope that the redeployment exercise would take her from age 49 to 50 at which point she could choose the more favourable option of voluntary retirement) an act of age discrimination?
Not in the circumstances of this case, held the EAT in Palmer v RBS . We are grateful to Daniel Barnett for summarising this case.
The Claimant was placed at risk of redundancy with a number of other employees. They were all given the option of choosing voluntary redundancy or redeployment. Those over 55 were offered an additional option to take voluntary early retirement. The Respondent subsequently introduced the option of voluntary early retirement for those under 55 but over 50. The Claimant (aged 49) wanted to change her choice from redundancy to redeployment on the basis that this process would take time, during which she would reach the age of 50 and thereafter be entitled to elect early retirement. The Claimant brought a claim on the basis that the Respondent’s failure to allow her to change her choice amounted to age discrimination. The EAT agreed with the employment tribunal that the Claimant had not established less favourable treatment. There was a material difference between the Claimant and the comparator group: the Claimant could not claim early retirement at her projected date of
CIPP Policy News Journal
08/04/2015, Page 116 of 521
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