News - Employers are liable for the actions of manipulators in automatically unfair dismissals

Employment & Discrimination - Deshpal Panesar

The EAT, presided over by the President, has in its judgment in Cadent Gas v Singh, set out four important matters in relation to dismissals for impermissible reasons including whistleblowing.

  • Firstly, even if the dismissing officer was not motivated by the impermissible reason (i.e. trade union membership, whistleblowing) the employer can still be fixed with the motive of someone who has manipulated the dismissal if they were part of the investigation process.
  • Secondly, manipulation can take many forms, including withholding information, or steering an investigation towards dismissal, and is not limited to direct contact with the dismissing officer.
  • The (practical) boundary around those whose motivation may be attributed to the employer is (as in this case) the person or persons carrying out the deputed function of the employer in the investigation.
  • Fourthly, there is an important distinction to be borne in mind in determining whether a dismissal was for an impermissible reason. Namely that prejudice or malice on the part of the employer is not necessary where the impermissible reason was nevertheless the sole or main reason for the dismissal.
     

Mr Singh was a senior gas engineer and active trade unionist, who had been employed by Cadent Gas for over a quarter of a century with a blemishless record. He was dismissed for missing a service level agreement attendance standard for attending a call out by one minute. The context being that he had spent the entire day working in the extreme heat without eating, and as such, had stopped on his way to the job to get some food, knowing that he would be obliged to remain on the job until completed, potentially for hours. Furthermore he had been informed of the job only after 20 minutes of the allotted hour had passed.

Mr Singh was informed by his manager that no action was likely to ensue. But his case was subsequently taken up and pursued by a senior manager, a Mr Huckerby, with whom Mr Singh had clashed over trade union matters. Mr Huckerby, who was not called by the Respondent as a witness, was found to have driven the disciplinary process, and provided incomplete information to HR, who had dealt with the Claimant at a more senior level than other non-union comparators. The ET found that whilst the separate dismissing had not shared Mr Huckerby’s motivation, and had not been motivated by prejudice against union activity, that had nevertheless been the reason for the dismissal. The employer appealed on the basis (amongst others) that the absence of shared motivation between Mr Huckerby and the dismissing officer meant that the dismissal could not be for trade union reasons.

The EAT dismissed the appeal, finding firstly that the absence of prejudice did make it impermissible to find that the dismissal was for trade union reasons. Further, in any event, even if they were wrong in that regard, pursuant to comments of Lord Justice Underhill in Royal Mail Group Ltd v Jhuti [2018] ICR 982 the motivations of a manager actively involved in the investigation were attributable to the employer, even if they were not shared by the dismissing officer. In so finding they stated:

‘If it were not then there would be potential scope for abuse. A manager with an unlawful motivation could take every step in the investigation to ensure that dismissal was the likely outcome. However, in order to avoid liability attaching to the employer, the final decision could then be passed to another (innocent) manager.

The difficult question is where to draw the line between that where attribution is appropriate and that where it is not. The decision in Orr establishes a line based on whether or not the person is carrying out the employers deputed function for the purposes of the investigation in question. That line may result in harsh outcomes for the victims of unlawfully motivated manipulation cases- the decisions in Orr and Jhuti themselves are examples- but it is a workable line (binding on this Appeal Tribunal) that avoids the situation whereby the motivation of any employee is attributable to the employer, regardless of whether that employee has any formal and significant role in the process.’

As such, taking up the lead given by Lord Justice Underhill in Jhuti at paragraph 62, who stated that there is a strong case for the motivation of an investigating manager to be attributed to an employer even if that motivation was not shared by the ultimate decision maker, the EAT has made an important and considered extension to the protection of employees whose dismissals are the result of manipulation for unlawful reasons.

For full judgment, please click here.

Deshpal Panesar, instructed by Simpsons solicitors, Mr Singh was supported by the GMB

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