Improper motivation of investigating manager meant employer liable for automatic unfair dismissal

Improper motivation of investigating manager meant employer liable for automatic unfair dismissal

In the case of Cadent Gas Limited v Singh, the Employment Appeal Tribunal held that an employer can be found liable for automatic unfair dismissal where a manager motivated by resentment over the claimant's trade union activities played a leading role in the disciplinary investigation, despite the fact that the key decision-makers were not motivated by prejudice towards the Claimant.

Background

The Claimant had been employed by the Respondent for almost thirty years and had a clean disciplinary record.  He was a health and safety representative and a trade union shop steward. 

In June 2017, the Claimant was called to attend a gas leak in the early hours of the morning.  The Claimant had not rested properly or eaten prior to the call but accepted the call as he was led to believe that no one else could attend.  Without informing Dispatch, he stopped for some food on the way to the call, which meant that he arrived at the premises 1 minute outside the time stipulated in the service level agreement.

A senior manager, who had had difficulties with the Claimant in the past in relation to his trade union activities, played a leading role in the investigation.  In particular, he exercised his influence over the process by amending the terms of reference of the investigation, passing on incorrect information to HR and the dismissing officer, and referring to the Claimant’s trade union involvement even though this was irrelevant.  He also informed the Claimant that his conduct amounted to gross misconduct before the investigation had concluded.  The disciplinary hearing was chaired by another manager who decided to dismiss the Claimant for gross misconduct.

The Claimant lodged a claim for automatic unfair dismissal on the grounds of his trade union activities.  The Tribunal upheld the Claimant’s claim on the basis that the senior manager had influenced the process and pushed the investigation towards dismissal, despite the key decision-makers not being motivated by prejudice against the Claimant for his trade union activities.

The Respondent appealed to the Employment Appeal Tribunal (“EAT”) on the basis that only the motivation of the dismissing officer and appeal officer was relevant.

Decision

The EAT dismissed the appeal.  It held that the motivation and knowledge of another individual could be attributed to the employer as the motivation of the senior manager played a part in the reasoning of the dismissing officer’s decision to dismiss the Claimant for gross misconduct.  The EAT considered the Court of Appeal’s decision in Royal Mail v Jhuti and held that the leading role the senior manager took meant that his knowledge and motivation could be attributed to the employer even though he did not make the decision to dismiss.

Commentary

This case was decided before the Supreme Court decision in Jhuti, but the two cases together show clearly that an employer will not escape liability for unfair dismissal where on the face of it a decision to dismiss is fair, but underneath, that decision was influenced by a more senior employee with an unfair reason.  These two cases highlight the importance of employers ensuring that independent and impartial managers are appointed to chair investigation and disciplinary hearings and decision-makers consider cases objectively.

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