Historically, Employment Tribunals have been clear that when investigating the fairness of a dismissal, both the process undertaken, and the reasonableness of the dismissal should be taken into account. But what happens to these tests when it is found that a senior manager, motivated by resentment of the employee, is found to have manipulated the disciplinary process, despite having no official role to play in the dismissal? This matter was discussed in the recent EAT case of Cadent Gas Limited v Singh.
Mr Singh, a gas engineer, was an active trade union official for GMB at his workplace who regularly raised concerns on behalf of the union to management. As part of his role, he was required to respond to priority gas leaks without delay with the company’s policy stating that engineers must arrive to a call out within 1 hour. On the occasion in question, Mr Singh arrived 1 minute late to a call out, having been allocated it 20 minutes late as it had been assigned to another engineer originally. He was running on only 2 hours sleep, had not eaten in the day and had worked on a particularly difficult job previously. As a result, he stopped for food on his way to the call out which led to his late arrival.
The fact that he’d not arrived inside an hour was noticed by Mr Huckerby, a senior manager in the company who had previously had a series of run-ins with Mr Singh due to his trade union activities. Mr Singh had also raised 3 grievances about Mr Huckerby in 2016. Mr Huckerby wrote to HR stating that there was potentially disciplinary action against Mr Singh for missing the deadline, later advising that the job had failed regulatory standards. He then wrote to another manager to confirm this, stating that Mr Singh was a trade union representative which could be an issue.
HR recommended the matter was investigated and appointed a Mr Brown to carry out the investigation. Mr Huckerby, whilst not the investigator, prepared the terms of reference for the investigation, which included reference to Mr Singh’s trade union role. During this period, Mr Singh was not aware of any investigation being undertaken until Mr Huckerby informed him that an investigation had concluded and would lead to a gross misconduct case. This statement by Mr Huckerby was made before the investigation report had been produced by Mr Brown or confirmation that disciplinary action was proposed. Throughout the investigation, Mr Huckerby interfered and even provided incorrect information that Mr Singh had taken a break on the night in question. Owing, in part, to the information provided by Mr Huckerby, the investigation report found that Mr Singh had failed to comply with company policy, and the matter proceeded to disciplinary.
Mr Wilson, chaired the disciplinary hearing, and based upon the evidence available to him, decided that Mr Singh was guilty of gross misconduct. The letter confirming dismissal stated that Mr Singh ‘above all people should have been aware of the seriousness of your actions’ in reference to his trade union activities.
Mr Singh brought a number of claims in the Employment Tribunal (ET) including unfair dismissal and automatic unfair dismissal. A claim of automatic unfair dismissal can arise in a number of situations one of which is for union membership and activities.
At the ET, the majority of the Claimant’s claims, including unfair dismissal and automatic unfair dismissal, succeeded. Whilst the ET found that Mr Wilson and Mr Brown were not motivated by prejudice against Mr Singh for his trade union activities, they did find that the investigation was wholly inadequate and that other members of staff were culpable for the incident and were not put through a disciplinary process. They also found that there was evidence to show that Mr Huckerby was heavily involved in pushing the matter towards a disciplinary. Mr Huckerby was never called as a witness, despite the evidence showing his involvement, to refute Mr Singh’s points.
Cadent Gas appealed the decision to the Employment Appeals Tribunal (EAT) on four grounds, which included the argument that the ET had found that Mr Brown and Mr Wilson (as the decisions makers) were not motivated as a result of trade union activities and that Mr Huckerby’s motivations fell outside the scope of what the ET should have considered. Owing to the appeal points, Cadent Gas argued that as a matter of law, the ET should have concentrated on the mindset of the decision makers and not Mr Huckerby and should not, therefore, have found that Mr Singh was unfairly dismissed.
The EAT dismissed this appeal. They found clear evidence to suggest that the decision makers had come to their conclusions based on “manipulation” of the evidence including the withholding of certain details and reference to the trade union activities undertaken by Mr Singh. Further, they found that it was appropriate to consider Mr Huckerby’s motivations.
The point regarding Mr Huckerby’s motivations are key to this judgment and flow from guidance given in the Court of Appeal case of Jhuti which my colleague Chris Aldridge has covered in more detail here. The EAT found that Mr Huckerby had driven the investigation which ultimately led to the dismissal and, as a result, treated Mr Singh unfairly compared to his colleagues. This was therefore a situation in which Mr Huckerby manipulated the situation and it was appropriate to attribute his motivation to the employer.
What does this mean for you or your business, and what should you be doing now?
This case reiterates the need for impartiality when looking at misconduct cases during all stages of the disciplinary. The investigator should merely take a fact-finding role, which will involve weighing up all of the facts, both for and against the allegation, in order to determine whether the matter should proceed to disciplinary. They should not suggest any outcome. They should only decide if there is a case to answer. The disciplinary officer should then look at the facts impartially, allowing the employee to make representations, before deciding whether there should be a sanction and what that sanction will be.
At any stage of the process, it is key that the investigator and disciplinary officer do not allow themselves to have their decisions influenced by others. Historically, HR has often been accused of being seen to influence outcomes, but in this case, it was a senior manager with a bone to pick with the individual. Investigators and disciplinary officers might want to consider why a matter is being reviewed, especially in situations in which a characteristic such as trade union membership has been mentioned.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.