Employers frequently complain that they face too much red tape in firing an employee following a misconduct at work. Is this really so and if so, should an employer have more freedom to dismiss?
Currently, there are safeguards in place so that employers should ensure the fairness of a dismissal with a proper process and that the outcome is reasonable.
Misconduct at work
What should happen, however, when a senior manager, motivated by resentment of the employee, is found to have manipulated the disciplinary process, despite having no official role to play in the dismissal? This was discussed in a 2019 appeal case of Cadent Gas Limited v Singh.
Background
Mr Singh, a gas engineer, was an active trade union official who regularly raised concerns on behalf of his members to management. His own job role as a gas engineer required that he respond to priority gas leaks without delay, arriving to a call out within an hour.
On one occasion Mr Singh arrived 1 minute late to a call out, having had the call allocated to him 20 minutes later than it should have been because it had been assigned to another engineer originally. He was running on only 2 hours sleep, had not eaten in the day and had worked on a particularly difficult job previously. As a result, he stopped for food on his way to the call out, which led to his late arrival.
The fact that he’d not arrived inside an hour was noticed by H, a senior manager in the company who had previously had a series of run-ins with Mr Singh due to his trade union activities. Mr Singh had also raised a number of grievances about H in 2016. H wrote to HR stating that there was potentially a need to take disciplinary action against Mr Singh for missing the deadline. He later added that the job had failed regulatory standards. He then wrote to another manager to confirm this, stating that Mr Singh was a trade union representative which “could be an issue”.
HR recommended the matter was investigated and appointed a different manager to carry out the investigation. H, whilst not the investigator, prepared the terms of reference for the investigation, which included reference to Mr Singh’s trade union role. During this period, Mr Singh was not aware of any investigation being undertaken until H informed him that an investigation had been concluded and would lead to a gross misconduct case. This statement by H was made before the investigation report had been produced by the investigator or confirmation that disciplinary action was proposed.
Throughout the investigation, H interfered and even provided incorrect information that Mr Singh had taken a break on the night in question. Owing, in part, to the information provided by H, the investigation report found that Mr Singh had failed to comply with company policy, and the matter proceeded to disciplinary.
An independent manager chaired the disciplinary hearing and based upon the evidence available to him, decided that Mr Singh was guilty of gross misconduct. The letter confirming dismissal stated that Mr Singh “above all people should have been aware of the seriousness of [his] actions”, in reference to his trade union activities.
Mr Singh brought a number of claims in the Employment Tribunal (ET) including automatic unfair dismissal, alleging that he was dismissed for union membership and activities.
Mr Singh’s claims, including unfair dismissal and automatic unfair dismissal, succeeded at the ET. Whilst the ET found that neither the investigator nor the disciplinary hearing manager were motivated by prejudice against Mr Singh for his trade union activities, they did find that the investigation was wholly inadequate and that other members of staff were culpable for the incident and were not put through a disciplinary process. They also found that there was evidence to show that H was heavily involved in pushing the matter towards a disciplinary. H was never called as a witness, to refute Mr Singh’s points, despite the evidence showing his involvement.
Cadent Gas appealed the decision to the Employment Appeal Tribunal (EAT) on four grounds, which included the argument that the ET had found that the decisions makers were not motivated as a result of trade union activities and that H’s motivations fell outside the scope of what the ET should have considered. Cadent Gas argued that as a matter of law, the ET should have concentrated on the mindset of the decision makers and not H and should not, therefore, have found that Mr Singh was unfairly dismissed.
The EAT dismissed the appeal. They found clear evidence to suggest that the decision makers had come to their conclusions based on “manipulation” of the evidence including the withholding of certain details and reference to the trade union activities undertaken by Mr Singh. Further, they found that it was appropriate to consider H’s motivations.
The point regarding H’s motivations is key to this judgment and flows from guidance in other cases. The EAT found that H had driven the investigation which ultimately led to the dismissal and, as a result, treated Mr Singh unfairly compared to his colleagues. H had manipulated the situation and it was appropriate to attribute his motivation to the employer.
In reaching its decision, the EAT referred to the case Orr v Milton Keynes Council (2011) noting that it is generally the motivation of the decision-maker that is key. However, following the case of Royal Mail Ltd v Jhuti (2017), it recognised that there are situations (described as “manipulation cases”) where the motivation of a “non-decision maker” can be attributed to an employer, even where that motivation is not shared by the decision maker.
What does this mean for your business?
This case reiterates the need for impartiality during all the stages of a disciplinary process following a misconduct at work. The process here was undermined by H, the senior manager, who had undue influence from the start of the matter. Keep the following in mind:
- The investigator’s role is solely one of fact-finding. This involves weighing up all the facts, both for and against the allegation, to decide if there is a case to answer and whether the matter should proceed to disciplinary hearing. The investigator should steer clear of suggesting any outcome.
- The disciplinary officer should be a different, independent person and should look at the facts impartially, allowing the employee to make representations, before deciding whether there should be a sanction and what that sanction will be.
- Importantly, neither the investigator nor the disciplinary officer should allow themselves to be influenced in their decisions by others.
- HR has an important role to organise and guide a lawful process but cannot be seen to influence outcomes.
Misconduct at work dismissals are relatively easy to run and the hurdle is low for employers to be able to dismiss errant employees. Employers running a compliant process with care and advice run a minimal risk of a successful claim from a dismissed employee.
Demonstrating independence between the different stages of a process can be trickier for smaller organisations in particular. We can assist by providing external investigators, hearing and appeal decision-makers.