Anti-trade union motivation on investigator's part could be attributed to employer


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The Employment Appeal Tribunal (EAT) has found in Cadent Gas Ltd v Singh that an employee was dismissed because of his trade union activities.  The employer had not managed to discharge the burden of showing a reason, separate to the trade union activities, for the dismissal.

The claimant was employed by CG Ltd, a national gas emergency service, and was also the health and safety representative and shop steward for the GMB trade union.  In his role as trade union representative he regularly raised issues of concern.  H, a senior manager at CG Ltd, received a report which noted that a callout to which the claimant had arrived late resulted in the service level agreement (SLA) requirement of one hour being missed.

H recommended that disciplinary action should be raised against the claimant and, when HR then recommended in turn that the matter be treated as gross misconduct and an investigation officer appointed, continued to be involved in the process.  He changed the terms of reference so that the claimant was referred to as a "trained health and safety rep".  W ran the disciplinary hearing and found that the claimant had been guilty of gross misconduct and that dismissal was the appropriate sanction.  An appeal against the decision was rejected by D.

The tribunal found that the claimant had been held to a higher account due to his status as health and safety representative.  It did not accept that W or D were motivated by prejudice against the claimant for his trade union activities, but found that there was a history of conflict between the claimant and H due to these activities.  The leading role which H had taken in the investigation meant that the claimant faced a charge of gross misconduct while other employees in similar circumstances had faced less serious disciplinary action.  It followed that the claimant had raised a prima facie case that the reason for his dismissal was his trade union activities, and the burden shifted to CG Ltd to prove that there was another reason for the dismissal which it failed to do.

On appeal, the EAT held that the tribunal's finding that W and D were not motivated by prejudice against the claimant for trade union activities did not equate to a finding that these activities had not been a factor operating on W's mind when he reached the decision to dismiss.  W had presided over an inadequate investigation, and was found to have held the claimant to a higher standard because of his trade union activities.  It was open to the tribunal to conclude that the burden of showing the reason for dismissal had not been discharged by CG Ltd.  Alternatively, if the tribunal had found that the claimant's trade union activities did not play a part in W and D's decision then the leading role taken by H in the investigation meant that his knowledge and motivation could be attributed to the employer even though he had not made the decision to dismiss.

Take note:  This is another case, like Royal Mail Ltd v Jhuti, in which the thought processes and motivation of someone who does not make the actual decision to dismiss can be attributable to the employer.  Again, it will be important for any dismissal process to be carefully overseen by the employer's HR department to ensure that decisions are reached without interference from others who may influence the ultimate disciplinary sanction.

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