216: Employer liable for unfair dismissal if manager manipulates disciplinary investigation

Employers who subject an employee to a detriment or dismissal because of their trade union membership or activities will be liable for automatic unfair dismissal, for which compensation is uncapped. In Cadent Gas Ltd v Singh, the Employment Appeal Tribunal (EAT) has upheld a decision that an employer was dismissed for trade union reasons in circumstances where the disciplinary process was manipulated by a manager motivated by hostility towards the employee’s union activities, but the decision-makers were not aware of that motivation or manipulation.

Mr Singh was a senior gas engineer and active trade unionist for the GMB who had an unblemished record of 29 years with Cadent Gas Ltd. He had previously raised a number of grievances relating to unfair allocation of work. Mr Singh was dismissed for gross misconduct after he responded to a call-out for a gas leak one minute outside of the company’s required response time. Although he had been informed by his manager that no action was likely to be taken, disciplinary proceedings were subsequently pursued by a senior manager, Mr Huckerby, who had previously clashed with Mr Singh over trade union issues and had dealt with some of his grievances. Although Mr Huckerby was not the investigating officer, he had a leading role in the disciplinary process.

The Employment Tribunal upheld Mr Singh’s claim that his dismissal was automatically unfair because it was motivated by his trade union activities. There was evidence that Mr Huckerby had initiated the disciplinary investigation; raised Mr Singh’s trade union activities with HR; failed to mention key mitigating factors; changed the terms of reference for the investigation; and advised Mr Singh that the incident amounted to gross misconduct before the investigation was concluded. However, Cadent Gas appealed this decision on the basis that the dismissal could not be for trade union reasons because the dismissing officer held no prejudice against Mr Singh and had not shared Mr Huckerby’s motivation.

The EAT dismissed the appeal. When considering the fairness of a dismissal, the motivation of a manager who had actively manipulated the disciplinary process could be attributed to the employer, even where that manager did not make the final decision to dismiss and that motivation was not shared by the disciplinary or appeal panel.

This decision is consistent with the Supreme Court’s reasoning in Royal Mail Ltd v Jhuti. It highlights that an employer can be found liable for automatic unfair dismissal where an investigation has been deliberately manipulated by a manager for an unlawful reason, such as trade union membership or whistleblowing, even where the dismissing officer was not motivated by that reason. Employers should therefore ensure that managers with responsibility for any aspect of the disciplinary process are given detailed training to understand the need to scrutinise closely the findings of an investigation and the many forms manipulation may take. This may involve making further enquiries or challenging evidence. It is also worth emphasising to employees that interfering with disciplinary proceedings is in itself a disciplinary offence.