When can the motivation of a manager be attributed to an employer?

Background

Cadent Gas Limited (‘Cadent’) manage the national gas emergency service. Their response policy (EM72) states that “employees must travel to emergency callouts without delay, or, if delayed, they must contact the Dispatch call centre”. Mr Singh worked as a Lead First Response Engineer and would attend these emergency callouts. He was also a health and safety representative and an active trade union official.

On 17 June 2017, Mr Singh attended a complex and physically demanding job and, by the end of it, had not eaten for over 12 hours. Dispatch assessed whether to relieve Mr Singh of his duties under the ‘Fatigue Risk Assessment’ policy; however, this assessment was not conducted or noted correctly. As a result, Mr Singh was called out to attend a gas leak at 1.13am on 18 June 2017, which he accepted, as he felt that he didn’t have a choice.

Instead of attending the callout location directly, unbeknownst to Dispatch, Mr Singh travelled 1 mile in the opposite direction and stopped at KFC, as he believed the job “could take a while”. Mr Singh later attended the callout location, but arrived 1 minute outside of the hour specified within the service level agreement (SLA) and the property could not be accessed.

Mr Huckerby, a manager with whom Mr Singh had previous difficulties, noted this failure. Mr Singh had previously raised grievances involving Mr Huckerby and believed that he “bore an animas…due to his trade union activities”. Prior to this incident, Mr Singh had an unblemished record of employment. Mr Huckerby advised HR that the “job had failed regulatory standards“; he also failed to account for the delay in Dispatch assigning the job, and implied that Mr Singh had not been truthful in his account of events. HR decided to treat this matter as gross misconduct and commenced an investigation, led by Mr Brown. Mr Huckerby continued to play a leading role in the investigation and made references to Mr Singh’s trade union and health and safety roles throughout.

Mr Singh was found guilty of gross misconduct and dismissed. Mr Singh brought an Employment Tribunal claim on the grounds of “unfair dismissal, automatic unfair dismissal on the grounds of trade union membership or activities, wrongful dismissal“.

Employment Tribunal (ET)

The ET concluded that whilst “the failure to comply with EM72 was a serious matter“, Mr Singh’s investigation was “dealt with much more seriously and by more senior management initially than in other cases“. Mr Huckerby seemed to drive the investigation, even though he had never been involved in the other cases. Similar instances with other employees had resulted in written warnings; as such, the ET held that the dismissal was not within the band of reasonable responses. Mr Singh had established a prima facie case that his dismissal was as a result of his trade union role and that he had been held to a higher standard. The burden of proof shifted to Cadent, who failed to provide evidence to explain Mr Singh’s treatment.

Further, the investigation was “wholly inadequate” and “no action was taken against anyone other than” Mr Singh, despite clear failures in Dispatch. The ET stated that “We do not conclude that Mr Wilson or Mr Dennis were motivated by prejudice against the Claimant for its trade union activities or that Mr Wilson was in conspiracy with Mr Huckerby to dismiss the Claimant for a falsehood but motivation is not necessary“. Cadent accepted that Mr Singh should not have been called out to the job. Mr Singh received a compensatory award; however, this was reduced by 20% for contributory fault.

Cadent appealed the decision, on the grounds that Mr Singh’s trade union activities were not the reason behind his dismissal and argued that only the mental processes of the managers that dismissed Mr Singh should be considered.

Employment Appeal Tribunal (EAT)

The appeal was dismissed. The EAT held that the ET’s application of relevant case law relating to the motivation of an employee was “entirely correct” and confirmed that the trade union activities played a role in the final decision and Mr Singh’s treatment. Mr Huckerby’s manipulation “contributed to an imbalanced picture being presented to HR and which resulted in a charge of gross misconduct being laid“. The EAT concluded that “this case is a good example of one where the motivation of the manager deputed to conduct the investigation can be attributed to the employer, even if the eventual dismissing officers did not share that motivation“.

Comments

This is a reminder for employers that they should ensure from the outset that an investigation is not tainted by unlawful motivation and that they have robust procedures in place so that investigations are heard and led by an appropriate and neutral investigatory officer.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.