Although tribunals are required to focus on the “mental processes” of the decision-makers in a dismissal, the Employment Appeal Tribunal (EAT) held in Cadent Gas Ltd v Singh that there are still situations where the motivation and knowledge of a person who is not the decision-maker can be attributed to the employer. That is the case even when the decision-maker was unaware of that motivation and knowledge.
Basic facts
Mr Singh, a gas engineer, was also the GMB shop steward and the health and safety rep. Over the 30 years he had worked for the company, he had raised a number of grievances about being allocated more work than anyone else.
On 19 June 2017, he was asked to attend to a gas leak at 1.13am contrary to the company’s fatigue risk assessment policy. Instead of going directly to the job, he stopped for some food without telling the dispatch centre. As a result, he arrived at the premises 1 minute outside the hour stipulated in the service level agreement.
Mr Huckerby, a manager with whom Mr Singh had difficulties in the past relating to his union activities, wrote to HR flagging up the missed target as a potential disciplinary action. Mr Huckerby then went on to play a leading role in the investigation (outside of the employer’s usual process). One month before the disciplinary investigation report was published, Mr Huckerby told Mr Singh that it would be a gross misconduct investigation. The dismissal letter referred to his status as a health and safety rep and said “you above all people should have been aware of the seriousness of your actions”.
After being dismissed for gross misconduct, Mr Singh claimed (among other things), automatic unfair dismissal because of his trade union activities contrary to section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).
Tribunal decision
Upholding Mr Singh’s complaints, the tribunal pointed to the leading role played by Mr Huckerby who had not only instigated the investigation, but had also amended its terms of reference. In addition, he had given incorrect information to HR and to the dismissing officer in the course of the investigation. He had referred to Mr Singh’s trade union status on more than one occasion; and omitted to mention that there had been a 20-minute delay by dispatch in allocating the call to him. As the company had treated other comparators more leniently, it concluded that the decision to dismiss had been as a result of Mr Singh’s trade union activities.
The company appealed, arguing that, as the dismissing officers had not been motivated by prejudice against Mr Singh for his trade union activities, that could not have been the reason for dismissal. As such, the tribunal had failed to ensure that it considered "only the mental processes” of the decision-makers.
EAT decision
Rejecting the appeal, the EAT held that the tribunal's finding that the dismissing officer and the person hearing the appeal were not motivated by prejudice did not preclude a finding that trade union activities played a part in their reasoning. Instead, it pointed out that there are situations where the motivation and knowledge of a person who is not the decision-maker can be attributed to the employer even when that motivation and knowledge is not shared by the decision-maker.
In this case Mr Huckerby was the manager chosen by the employer to carry out the task of investigating the misconduct. Given that he was heavily involved in directing the investigation, there was a strong case for attribution, reinforced by the findings of fact which suggest that there had been "manipulation" in the sense of withholding details, making unnecessary (and unexplained) references to trade union status and treating Mr Singh differently from the way others were treated.
His leading role in the investigation was such that it was appropriate, in the circumstances of this case, to attribute his motivation to the employer even though that motivation might not be shared by the manager who made the decision to dismiss him or the person who rejected his appeal.
Comment
In his capacity as a union representative, Mr Singh had raised three grievances about Mr Huckerby. The employer’s decision to allow him to be involved in the disciplinary process against Mr Singh was highly questionable.
It is important that employees formally question the independence of those involved in employers’ disciplinary/grievance proceedings where there is evidence to support allegations of bias. In this case, the manager’s anti-union comments and selective reporting of the facts of the case were evidence to support the allegations of anti-union bias.
The Supreme Court decision of Royal Mail v Jhuti (to be summarised in a future LELR) held that tribunals will need to look further than the manager who made the decision to dismiss. The tribunal, confirmed by the EAT, decided that Mr Huckerby’s actions amounted to a manipulation of the disciplinary decision maker. This meant that his views could be attributed to the employer.
Mr Singh was able to highlight a number of non-union comparators who were not dismissed in similar or more serious circumstances. This is very important evidence for claims of trade union detriment.
The employer chose not to call Mr Huckerby as a witness at tribunal, which the tribunal described as a “surprising” omission.