29 November, 2019
The Employment Appeal Tribunal has found that an employee was automatically unfairly dismissed due to his trade union activities despite the fact that 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.
The employee, Mr Singh, was a gas engineer for Cadent Gas Limited with 29 years' unblemished service. He was involved with the trade union as a health and safety representative. He was called out to a gas leak in the early hours of the morning, and responded despite the fact he was over his contracted hours, hadn't eaten since the previous morning, and had only had two hours' sleep. He stopped on route to get something to eat and arrived at the call out one minute after the required response time.
Mr Huckerby, a manager at Cadent, noted the late response. Prior to this incident, Mr Huckerby had had difficulties with Mr Singh over trade union activities. Mr Singh had also raised grievances in the past on the basis that he had been unfairly allocated work.
Cadent began disciplinary proceedings for gross misconduct leading ultimately to Mr Singh's dismissal, with Mr Huckerby playing a leading role. Mr Singh brought a claim for automatic unfair dismissal on the basis that it was due to his union activities.
At first instance the Employment Tribunal upheld his claim. Internal emails from Mr Huckerby had surfaced referring to Mr Singh's union status and stating that he wanted to keep this 'under the radar'. The Tribunal could not find an explanation for these emails, and also could not explain Mr Huckerby's involvement in any event as it was not the norm for a manager of his seniority. Additionally, Mr Huckerby was found to have given incorrect information to HR and to others during the course of the investigation.
Cadent appealed the finding. During deliberations, the Tribunal had found that the managers at the disciplinary and appeal stages had no prejudice against Mr Singh because of his trade union activities. Cadent argued that only the 'mental processes' of the decision-makers could be considered.
The Employment Appeal Tribunal dismissed the appeal. Following the decision in Royal Mail Group v. Jhuti, it held that there are circumstances where the motivation and knowledge of someone who is not a decision-maker may be attributed to the employer if, as in this case, that person is engaged in and had manipulated the investigatory process. Whilst 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 EAT believed that Mr Singh had been held to a higher standard because of his union acitivites and the investigation had been inadequate.
Interestingly, the Jhuti case has been appealed to the Supreme Court and the decision is awaited.
The key message for employers is to ensure that individuals who may have questionable motivations have no involvement or influence over investigations. Where there is any doubt, it is best that they are removed as far as possible from the procedure to seek to ensure that the robustness of the investigation can not be called into question.
For more information contact Rosalind Leahy in our Employment & HR department via email or phone on 01772 220185. Alternatively send any question through to Forbes Solicitors via our online Contact Form.