In Cadent Gas Limited v Singh the Claimant was a gas engineer and undertook roles as a H&S representative and shop steward for the GMB union. He had worked for the Respondent for 19 years and had an unblemished disciplinary record. Throughout 2016 and 2017 he had raised a long list of grievances, relating, among other things, to being unfairly treated on the grounds of his trade union activities. These included three grievances against his line manager. Although the Tribunal had no evidence of the outcome of some of these grievances it observed that the Respondent “found the number of challenges from the Claimant ‘difficult to manage’…”
On the day in question the Claimant was called out to a gas leak at 1.13am, having worked on a particularly complicated job from 8.00am to 8.44pm the previous day, and having had very little to eat. He objected to being called out, but as there was apparently no-one else available, reluctantly agreed to go. On the way to the job he stopped to buy food from a fast food outlet and arrived at one minute outside the SLA.
The Respondent’s Network Manager, who had been the subject of several the Claimant’s grievances, became aware from a daily report that the SLA had been missed, and instigated a disciplinary investigation with HR. This was undertaken by another head of department, but the Network Manager continued to play a part. He altered the terms of reference for the investigation drafted by HR, so that they referred to the Claimant being “a trained Health & Safety Rep”, and subsequently obtained data from the claimant’s vehicle tracker and gas monitoring device. He also emailed a reply to HR in response to an email they had sent to the investigating officer, advising that SLA targets had been missed, but failing to mention that 20 minutes had already been lost by the time the Claimant had been called due to failures by the Dispatch department. The Tribunal found that this led directly to HR advising that the case was one of gross misconduct. The Claimant alleged that this manager had bore animosity towards him due to his trade union activities.
The original Tribunal accepted that the Respondent had grounds to instigate a disciplinary investigation, but found that the Claimant’s conduct appeared to have been dealt with much more seriously, and by more senior management initially, than in other similar cases.
It was observed that the Network Manager “…did not merely instigate the investigation, he drove the investigation”. Having compared the approach to that taken in a similar case, where the employee concerned had been given a Final Written Warning, the Tribunal found that there was a prima facie case for the Claimant’s claim that his dismissal had been on the grounds of his trade union activities. It further found that although neither the investigating officer nor the disciplining officer were motivated by prejudice toward the claimant, the Network Manager’s “active role” in the investigation led to a different approach being taken than in other similar investigations, which led to the Claimant facing a charge of gross misconduct and subsequently being dismissed.
Furthermore the Tribunal took into account that on the suspension checklist it was noted that there was “potential [for the Claimant] to try to influence peers as a TU Rep” and that the Respondent had provided no explanation as to why the Claimant’s TU status might mean there was a greater risk of him influencing others if not suspended. In so doing it made the inference that there was a prejudicial view of the Claimant due to this trade union status. It was further noted that in the dismissal letter, reference had been made to the fact that the Claimant, as a Health & Safety Representative, “above all people” should have been aware of the seriousness of his actions, and this was found to be placing the Claimant to a higher standard of conduct on the grounds of his trade union status.
The Tribunal ultimately found that the Claimant had been automatically unfairly dismissed on the grounds of his trade union activities.
On appeal, it was argued that having found that neither the investigating nor disciplining officers were motivated by prejudice against the Claimant for his trade union activities, the Tribunal ought to have concluded that Trade Union activities were not the principal reason for his dismissal. However, in dismissing the appeal, the EAT commented:
‘..there are situations….where the motivation and knowledge of a person who is not the decision-maker may be attributed to the employer even where that motivation and knowledge is not shared by the decision-maker…[the Network Manager] was not only an investigator, and therefore a person carrying out deputed functions for the employer in relation to the investigation, he played a leading part in that investigation… the Tribunal’s findings reveal… a compelling picture of a senior manager, who has a poor history with the Claimant by reason of his trade union activities, taking a leading and directing role in the investigation in circumstances where other employees who were not engaged in trade union activities and who had committed similar acts of misconduct were dealt with by local management and not investigated in the same way.’
Debbie Knowles, Managing Director of EML comments:
“Whilst it can sometimes be difficult for senior managers to completely detach themselves from an investigation, this is a timely warning of the dangers of failing to do so which, in this case, led to allegations of bias and prejudice. Even without the added element of Trade Union status, the dismissal in this case would have been found to be unfair because of the senior manager’s bias. There are also important lessons about the importance of consistency of treatment, and of the wording of any documents which are completed as part of the disciplinary and dismissal process. In this case, what might appear to have been valid observations on the suspension checklist and in the dismissal letter, gave rise to a finding that those involved had treated the Claimant less favourably on the grounds of his trade union activities, albeit that they were not motivated by any prejudice.”
At EML, we can conduct a comprehensive investigation on your behalf and in so doing, ensure that you are in the best possible position to successfully defend any related claim that may arise further down the line. Our investigative approach typically involves the following steps:
- Review the disciplinary or grievance allegations and prepare an investigation brief
- Conduct an investigatory meeting with the employee
- Examine all relevant documentation and other evidence
- Interview any relevant witnesses, and take notes/witness statements
- Provide a full investigation report, including summary findings
- Make recommendations on any action required
Conducting an effective and fair investigation is a critical step in any disciplinary or grievance process. It can be the difference between winning and losing a subsequent Employment Tribunal claim. Therefore, please do not hesitate to call us in confidence about the support we can offer.