Was a dismissal for trade union activities automatically unfair because of the involvement of a senior manager, when both managers who heard the disciplinary and appeal hearings were 'innocent' of this?
Yes, held the EAT in Cadent Gas Limited v Singh.
The Claimant, a gas engineer, was dismissed for gross misconduct because he responded to a call-out for a gas leak one minute outside the Respondent's policy. He brought a claim that his dismissal was due to his trade union activity. The Claimant had 29 years' service and an unblemished record. He was also a health and safety representative and trade union shop steward. He had previously raised a number of grievances that he had been unfairly allocated work. On the day of the call-out he had worked on a complex and demanding job, had not eaten all day, and had less than 2 hours' sleep. On his way to the call-out he had stopped to get food.
The tribunal upheld the Claimant's claim. It noted that a senior manager, the subject of some of the Claimant's complaints, had driven the investigation towards dismissal. Although he was not the investigating officer, he had amended the terms of reference and given incorrect information to HR, and he told the Claimant that the case was one of gross misconduct before the investigation had concluded.
The Respondent appealed. The tribunal had found that the managers at the disciplinary and appeal stages had no prejudice against the Claimant because of his trade union activities. The Respondent argued that only the 'mental processes' of the decision-makers could be considered.
Following Royal Mail Group v Jhuti, the EAT rejected the appeal. 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 here) that person is engaged in and had manipulated the investigatory process.
Thanks to James English of Ward Hadaway for preparing this case summary.