Day 181 - 01 Nov 95 - Page 49


     
     1   Q.   But that is the tribunal's responsibility, is it not?
     2        A.  It is; and, obviously, they weigh it up in the balance
     3        of probabilities.
     4
     5   Q.   Yes.  I had forgotten that.  It is balance of probabilities
     6        before an industrial tribunal?
     7        A.  It is now.  The balance issue was changed.  I cannot
     8        remember which of the acts it was -- possibly 1989.  But
     9        the balance issue -----
    10
    11   Q.   Has it not always been balance of probabilities?
    12        A.  No.  The onus was always on the employer in the
    13        original -----
    14
    15   Q.   I understand that.  It was for the employer to prove on
    16        balance of probabilities that it was for some other good
    17        reason?
    18        A.  Yes.
    19
    20   Q.   But it always has been balance of probabilities; it has not
    21        been "sure" or "beyond reasonable doubt", as in a criminal
    22        case?
    23        A.  I am sorry.  You are right, absolutely.
    24
    25   Q.   So, the burden of proof is on the respondent employer?
    26        A.  What I was trying to say, my Lord, was that the actual
    27        burden of proof issue was, I believe, made neutral.  But
    28        this is possibly a fine point.
    29
    30   Q.   No presumption one way or the other?
    31        A.  No.  In the period of most intense scrutiny today, the
    32        period mid-80s, late 80s, it was for the employer to
    33        demonstrate -----
    34
    35   Q.   Well, at the end of the day, it may not matter.  Just so
    36        that everyone knows, it is some considerable time now
    37        before I had experience of an industrial tribunal, and
    38        I know that in unfair dismissal simply -- forget trade
    39        unions, but unfair dismissal -- the burden was on the
    40        employee to show that he or she had been dismissed.  That
    41        was not always as simple as it seemed, because sometimes
    42        the employee had left, as it were, of their own accord but
    43        said, "I was forced out", which was called constructive
    44        dismissal?
    45        A.  Absolutely.
    46
    47   Q.   It is for the employee to prove constructive dismissal.  It
    48        was then for the employer to prove that it, in ordinary
    49        language, was not unfair?
    50        A.  Yes. 
    51 
    52   Q.   Right.  I only mention it because I may be well out of 
    53        date.
    54        A.  No, I do not think you are that out of date.
    55
    56   MR. MORRIS:  On this issue, Mr. Rampton has helpfully provided
    57        the law regarding trade union activity.  If you remember,
    58        he read out paragraph 23, rule 1B, which was that: "An
    59        employee shall have the right not to have action taken
    60        against him by the employer for the purpose of (b)

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