Unfair dismissal: Can the anti-union motivation of an investigating manager be attributed to the employer?
In the case of Cadent Gas Limited v Singh the Employment Appeal Tribunal ("EAT") found that an employer can be liable for automatic unfair dismissal where the manager who drove the investigation is motivated by resentment over the employee's trade union activities. The EAT made the finding despite the fact that both the dismissing officer and the appeal officer were found to be free from any prejudice.
Cadent Gas Limited is the UK's biggest gas distribution network and is responsible for the national gas emergency service. The Claimant was a gas engineer and an active trade union member. The Respondent operates strict Service Level Agreements ("SLA") due to the important health and safety requirements of the work it carries out.
As part of the Claimant's role he was required to respond to gas leaks without delay. On 18 June 2017 he was called out to a gas leak at 1.13am. The Claimant had not rested or eaten properly and so stopped for food, without telling Dispatch. This led to the SLA not being met and this failing was noticed by Mr Huckerby, a senior manager. Mr Huckerby then played a leading role in the investigation which led to a disciplinary hearing. The Claimant and Mr Huckerby had previously conflicted over the Claimant's trade union activities and throughout the course of the investigation Mr Huckerby reportedly referred to the Claimant's trade union status. The disciplinary hearing was conducted by Mr Wilson, who had not had any prior involvement in the matter. Mr Wilson decided to dismiss the Claimant for gross misconduct.
The Claimant claimed that the reason or principal reason for his dismissal was due to his trade union activities, contrary to s152 of the Trade Union and Labour Relations (Consolidation) Act 1992. Employment Tribunal
The Tribunal found in favour of the Claimant. The Tribunal held that the failure to comply with the SLA was a serious matter which warranted investigation but that the Claimant's conduct appeared to have been dealt with much more seriously than in other cases and he was held to a higher account. On the facts of the case the Tribunal concluded that Mr Wilson and Mr Dennis (appeal officer) were not motivated by prejudice against the Claimant for his trade union activities but the dismissal was nevertheless automatically unfair.
The Respondent appealed on the basis that having found that Mr Wilson and Mr Dennis were both free from prejudice, this should be the end of the matter. The Respondent argued that there was no scope for attributing Mr Huckerby's trade union animosity to the employer. EAT
The EAT dismissed the appeal. The fact that Mr Wilson and Mr Dennis were not motivated by prejudice did not prevent a finding of fact that trade union activities played some part in their reasoning.
The EAT was clear that Mr Huckerby's leading role in the investigation was such that it was correct to attribute his motivation to the employer, despite the fact that this motivation might not be shared by Mr Wilson and Mr Dennis. Mr Huckerby was delegated with the investigation task by his employer. The EAT concluded that manipulation can take many forms and is not limited to those that may be apparent from direct communication. If a manager is heavily involved in leading the investigation and effectively steers the investigation towards a disciplinary hearing and dismissal, there is a strong argument for attribution.
The EAT noted that this case presents exactly the scenario envisaged by the Court of Appeal in Royal Mail Limited v Jhuti. The Court of Appeal set out a number of "manipulation" scenarios, one example being where a manager with some responsibility for an investigation might influence the process. The Supreme Court decision in Royal Mail v Jhuti is now available, providing further commentary. For an analysis of the Supreme Court decision please see our Legal Insight .
The key lesson for employers is to ensure that all those involved in any disciplinary process, from investigation through to appeal, are free from bias. Educating employees involved in conducting investigations, disciplinaries and grievances should be a top priority for all employers.
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