Motive of investigating manager attributed to employer
Tuesday 26th November 2019
In Cadent Gas Ltd v Singh, the EAT held that an investigating manager’s anti-trade union motivation could be attributed to his employer, notwithstanding that he did not take the decision to dismiss.
Mr Singh was a Lead First Response Engineer, the health and safety representative and shop steward for the GMB trade union. In this capacity he had raised various issues, some of which concerned Mr Huckerby, the Network Manager.
On 17 June, Mr Singh had been required to work more than 12 hours with little to eat on a demanding job during one of the hottest days of the year. CG’s Dispatch team then called him just before 1 am on 18 June, requesting he attend an uncontrolled gas escape. Another engineer had already turned down the job causing a 20-minute delay. Mr Singh felt he had no choice but to attend. Contrary to policy, he stopped for food on the way which resulted in him arriving 1 minute outside the required standard of service (SLA).
Subsequently, Mr Huckerby wrote to HR raising the possibility of disciplinary action against Mr Singh, referencing his trade union activities but making no reference to the 20-minute delay or surrounding circumstances. HR recommended that the matter be treated as gross misconduct and investigated. Although Mr Huckerby appointed an investigation officer, he continued to drive the process referencing, Mr Singh’s trade union activities numerous times. Mr Singh was dismissed for gross misconduct, with the dismissing manager stating that Mr Singh ‘above all people should have been aware of the seriousness of [his] actions’.
Mr Singh brought successful claims for unfair dismissal, automatic unfair dismissal on the grounds of trade union activities and wrongful dismissal. The ET agreed that the breach of policy warranted investigation. However, given the failure to interview anyone from the Dispatch team, the investigation was seriously flawed. Furthermore, there was clearly animosity between Mr Singh and Mr Huckerby, with the latter’s role in the investigation ensuring Mr Singh faced allegations of gross misconduct, when others committing similar transgressions were subject to less serious disciplinary action.
While the ET found nothing to support any such prejudice on the part of the dismissing managers, the dismissal letter made clear that Mr Singh, as a result of his role as health and safety representative, had been held to a higher standard. The ET concluded that Mr Singh had demonstrated that the reason for his dismissal was his trade union activities and CG failed to prove that there was an alternative reason for the dismissal.
CG appealed, arguing that since the ET held that the dismissing managers were not motivated by any prejudice against Mr Singh, Mr Huckerby’s animosity towards him could not be attributed to them.
The EAT dismissed the appeal. While the ET found that the managers involved in the decision to dismiss were not motivated by prejudice, this did not equate to a finding that trade union activities had not been a factor influencing them. Mr Singh was found to have been held to a higher standard because of his trade union activities and the investigation was found to have had been wholly inadequate. It was therefore open to the ET to conclude that the burden of proving the reason for dismissal had not been met.
If the EAT was wrong and the ET had instead found that Mr Singh’s trade union activities played no part in the reasoning of the dismissing managers, the ET’s analysis of the facts fell into one of the “manipulation” scenarios identified in Royal Mail Ltd v Jhuti. The leading role taken by Mr Huckerby in the investigation meant that his knowledge and motivation could be attributed to CG. The findings of fact showed that there was manipulation in the form of withholding details, making unnecessary and unexplained references to trade union status and treating Mr Singh differently to others in similar circumstances.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.