Liability for an Investigating Officer’s actions in relation to trade union activities

Cadent Gas Ltd v Singh [08.10.19]

The Employment Appeal Tribunal (EAT) recently upheld a decision that an employee was dismissed because of his trade union activities, in circumstances where the manager driving the disciplinary process had been motivated by hostilities towards the employee’s union.

The findings mean that employers may now face a higher degree of risk in trade union cases.

Background

The employee was dismissed following disciplinary charges of gross misconduct relating to his failure to meet a Service Level Agreement (SLA) target when attending a gas emergency service callout. The employee also failed to gain access to the building he attended despite another engineer being able to do so a few hours later.

The employee, who was a representative for the General, Municipal, Boilermakers and Allied Trade Union (GMB), appealed the decision to dismiss him. The employee’s appeal was dismissed and the employee pursued the claim in the Employment Tribunal (ET) where he claimed that the main reason for his dismissal was due to his trade union activities and as such was contrary to the Trade Union and Labour Relations (Consolidation) Act 1992.

A central part of the employee’s case was that the manager (M), who played a principle role in the disciplinary investigation had hostility towards GMB. Furthermore, M had a previous history of conflict with the employee in relation to his trade union activities.

There was evidence to show that M initiated the disciplinary investigation, raised the fact that the employee was a trade union representative with human resources, failed to mention potentially key evidence that mitigated the employee’s actions, changed the terms of reference for the investigation so that there was a reference to the employee being a ‘trained health and safety rep’, and advised the employee that a gross misconduct case was to be brought against him before the investigating officer had delivered his report. M was not called as a witness to the tribunal hearing.

At first instance, the ET upheld the claim. Whilst the disciplinary and appeal hearing managers were not motivated by prejudice against the employee due to his trade union activities, the trade union hostility of M, played a driving role in the disciplinary investigation meant that the employer had failed to discharge the burden of showing a reason, separate to the trade union activities, for the employee’s dismissal.

Cadent Gas appealed.

Decision

In upholding the decision, the EAT decided that the knowledge and motivation of M resulted in the dismissal, which could be attributed to the employer, despite M not making the decision to dismiss. 

The EAT stated there was a: distinction between the “reason why” the employer acts as it does and its purpose or motive in doing so.

Comment

This decision highlights that employers can be found liable, even where disciplinary and appeal officers are not motivated by prejudice against an employee for trade union activities.

This principle could in turn extend to other types of prejudice where employees are afforded protection, for example, prejudice towards a protected characteristic (e.g. discrimination) or because an employee has blown the whistle. In such circumstances, where the underlying investigation process is motivated by unlawful factors, it will not always follow that such matters were not a factor operating in the disciplinary officer’s mind when deciding to dismiss an employee.

Employers need to be aware of the serious implications if an employee or worker is subjected to a detriment or dismissed because:

  • they are or are not a member of a trade union
  • they have or are taking part in trade union activities; or
  • they have used or propose to use the services of a trade union.

Compensation for such dismissals is uncapped. Furthermore, the remedy of ‘interim relief’ is available to employees asserting they have been dismissed on grounds of trade union activities, whereby the employer can be ordered to immediately reinstate the employee (or, if it is unwilling to have them back, to continue paying their salary) until the case is finally determined.

In addition, employers should ensure that those acting in the capacity of disciplinary and appeal officers are provided with the appropriate training for dealing with such matters. Specifically, they should be advised to scrutinise the investigation undertaken closely, and be aware of any other matters that might have motivated the direction of the investigation and/or the charges against the employee. They should undertake their own further investigations where necessary and appropriate.

Should a claim escalate to the ET, then employers need to carefully consider who to call as witnesses to the hearing. This will depend heavily on the facts of the case and the allegations made by the employee, but failing to call a witness who could provide a simple explanation for what it did or did not do means that an employer could face liability in circumstances where it could have been avoided. M was not called to give evidence and we do question whether the employer could have avoided liability if M had attended and given credible and consistent evidence for his actions that confirmed he was not motivated by the Claimant’s trade union activities.

Related item: Avoiding the pitfalls of employee grievances

Read other items in Commercial Brief - November 2019