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Investigating manager's anti-union motivation could be attributed to employer
Cadent Gas Ltd v Singh
An employee was automatically unfairly dismissed because of his union activities even though neither the manager conducting the disciplinary hearing nor the manager who dismissed the appeal were motivated by prejudice against the employee because of his union activities.
Mr Singh was a gas engineer with 29 years’ unblemished service. He carried out trade union activities as a health and safety representative. At 1am one morning he was called out to a gas leak. He responded despite the fact that he was over his contracted hours, hadn’t eaten since 8am the previous morning and had only had two hours’ sleep. On the way to the job he stopped for something to eat and arrived one minute outside the required response time. This was noticed by Mr Huckerby, a manager with whom Mr Singh had had difficulties in the past relating to his union activities. Disciplinary proceedings for gross misconduct were initiated which led ultimately to Mr Singh’s dismissal. Mr Huckerby played a leading role in the investigation. Mr Singh argued that his dismissal was automatically unfair because of his union activities (ERA 1996, s 152).
A tribunal upheld his complaint. In the course of internal emails, Mr Huckerby referred to Mr Singh’s union status which he wanted to keep ‘on the radar’. These references the tribunal found to be unexplained as were various other steps taken by Mr Huckerby, including his own involvement which was not the norm for a manager of his seniority. Mr Huckerby was also found to have given incorrect information to HR and to the dismissing officer in the course of the investigation. The disciplinary hearing was conducted by Mr Wilson, who had not had any prior involvement. The employer appealed on the ground that, having found the dismissing officers were not prejudiced against Mr Singh on account of his union activities, there were no grounds for attributing Mr Huckerby's union animus to the employer. Only the mental processes of the actual decision makers were relevant.
The appeal was dismissed.
There is a distinction between the reason why an employer acts as it does and its purpose or motive in doing so. While the tribunal had held that the dismissing officers were not motivated by prejudice against Mr Singh for his union activities, this did not equate to a finding that Mr Singh’s union activities had not been a factor operating on their minds when they reached the decision to dismiss. The dismissing officer had held Mr Singh to a higher standard because of his union activities and had presided over an inadequate investigation.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2019/0024_19_0810.html
The interesting part of the EAT’s decision is its obiter comments (i.e. comments not central to its decision). It said that Mr Huckerby’s role in the process made him a ‘manipulator’ as identified by the Court of Appeal in Royal Mail Ltd v Jhuti, i.e. the leading role which he took meant that his knowledge and motivation could be attributed to the employer even though he had not made the decision to dismiss. The Jhuti case has been appealed and the decision of the Supreme Court is awaited.
In discrimination and whistleblowing claims the case law which is developing is that the dismissing officer must have knowledge of the whistleblowing or discrimination. This is because it is possible to join the individual employee ‘manipulator’ as a party to the proceedings and claim that the detriment they subjected the employee to includes their dismissal, for which the employer is usually vicariously liable. However, there is no ability to do this in automatically unfair dismissal cases such as this one and therefore on the grounds of public policy it is unlikely that this case will be overturned on appeal as otherwise there will be no redress for employees in these situations.