Employment and Immigration Law Update – Dismissal for trade union activities

The Employment Appeal Tribunal (EAT) has considered whether a manager’s anti-union motivation, leading to the employee’s dismissal, could properly be attributed to the employer.

Cadent Gas Ltd v Singh UKEAT/0024/19

Facts

The claimant was employed as a gas safety engineer. He was also the health and safety representative and shop steward for the GMB trade union. He was dismissed after arriving on a job one minute outside the one hour requirement specified under the applicable service level agreement.

A senior manager (H) had raised the prospect of disciplinary action against the claimant and appointed an investigation officer. The disciplinary hearing and subsequent appeal were conducted by other senior managers, but H had remained involved in the process. He had changed the terms of reference for the investigation so that it made reference to the claimant being a “trained health and safety rep”. He had also informed the claimant that a case of gross misconduct was being brought against him, before the investigation officer had delivered his report.

The claimant brought a claim for (automatic) unfair dismissal on the grounds of his trade union activities, claiming that it was motivated by H’s negative attitude towards the trade union and citing a history of conflict with H due to his trade union activities.  The tribunal upheld his claim, finding that the employer had failed to establish another fair reason for the dismissal. The leading role taken by H in the investigation meant that the claimant had faced a charge of gross misconduct when others in similar circumstances had faced less serious disciplinary action.

The employer appealed on the grounds that the tribunal had found neither the disciplining nor the appeal manager to have been motivated by the claimant’s trade union activities in their decision, and therefore it was wrong to attribute H’s trade union animosity to the company.

EAT decision

The EAT has dismissed the employer’s appeal, upholding the tribunal’s finding of automatic unfair dismissal.  While the disciplining and appeal hearing managers had not themselves been motivated by prejudice against the claimant for his trade union activities, the tribunal had been entitled to find that it was still a factor in reaching the decision to dismiss. The claimant had been held to a higher standard because of his trade union activities and his dismissal followed a wholly inadequate investigation.

Even if the claimant’s trade union activities had played no part in the managers’ reasoning, the EAT was satisfied that the decision had been manipulated by H, meaning that his knowledge and motivation could be attributed to the employer and form the basis of a finding of unfair dismissal.

Consequences

The EAT in this decision made reference to the previous case of Royal Mail v Jhuti, concerning the dismissal of a whistle-blower. In that case, the Court of Appeal held that the fairness of the dismissal had to be judged in light of what the decision-maker actually knew, rather than what knowledge should be attributed to them. However, the Court also recognised that there may be circumstances where a decision is manipulated to the extent that it becomes unfair. The EAT was satisfied here that H’s manipulation of the dismissal decision was sufficient to render the employer liable. It serves as an important reminder of conducting a thorough and impartial investigation of disciplinary allegations.

We are awaiting the Supreme Court’s decision following an appeal in the Jhuti case, on the question of when an employer is deemed to have knowledge of whistle-blowing disclosures. 

This article is from the November 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. The content of this article is for general information only. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.