Whistleblowing: motives of line manager crucial in reason for dismissal
Prior to his dismissal, Mr Singh was the health and safety trade union representative for the GMB and had raised a number of issues with management in his trade union capacity. Mr Singh has also raised a number of grievances against other employees of Cadent, including three against a senior manager.
In June 2017, Mr Singh was called to a “priority” gas leak. Due to the fact that he had not rested or eaten properly during his previous shift Mr Singh stopped for food, which resulted in him turning up one minute outside of the response timeframe stipulated in the service level agreement. Mr Singh was unable to access the property and returned home.
Mr Singh’s line manager contacted HR to inform them that Mr Singh’s arrival outside the stipulated timeframe resulted in the loss of the job and might require disciplinary action to be taken. Reference was made to Mr Singh’s trade union representative status by the line manager in this initial exchange with HR and subsequent internal documentation.
Mr Singh was ultimately dismissed from Cadent for gross misconduct following a disciplinary investigation which was carried out by another individual. Mr Singh’s line manager continued to play an active/leading role in the disciplinary proceedings by changing HR’s terms of reference for the investigation to include Mr Singh’s status as a trade union representative and providing incorrect information to the investigating officer, which was ultimately relied upon. Mr Singh unsuccessfully appealed his dismissal internally.
Mr Singh brought a number of claims before the Employment Tribunal including a claim for automatic unfair dismissal on the grounds of his trade union membership or activities and for unfair dismissal. The ET upheld both of Mr Singh’s unfair dismissal claims. They determined that Mr Singh was held to a higher standard as a result of his trade union membership, as evidenced by the use of the phrase “you above all people” in his dismissal letter. The ET acknowledged that whilst Cadent were entitled to investigate the incident, Mr Singh had been treated more severely when compared with other engineers who had been involved in similar incidents, and that his line manager’s active role in the investigation was the reason for the difference in treatment. The ET also determined that the investigation was flawed and concluded that the dismissal was not within the band of reasonable responses.
Cadent appealed to the EAT on the ground that the reason for dismissal was Mr Singh’s trade union activities. The EAT dismissed the appeal and concluded that the ET’s findings that the investigating officer and appeal officer “were not motivated by prejudice did not preclude a finding that trade union activities played a part in their reasoning”. The ET and EAT commented that Mr Singh’s line manager “was a manger deputed by [Cadent] to carry out the task of investigating the misconduct. His leading role in the investigation was such that it was appropriate, in the circumstances…to attribute his motivation to the employer”, even though this motivation was not shared by either the investigating officer or the appeal officer.
Points to take away
When conducting any internal investigations which may result in an employee being dismissed it is crucial that employers are mindful of who is materially involved in those investigations and whether there is any motive/angle on the part of those involved, even if they are not the ultimate decision-maker. Employers should also instruct the investigating officer to verify all of the information that is presented to them and make recommendation that others who appear to be at fault are also investigated.
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