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54 A. No, I do not think you are that out of date.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)
