We all know that when there is a possible workplace disciplinary or grievance issues, the employer should find out all they reasonably can by conducting a fair and objective investigation to see if there is a case to answer.
Cadent Gas Limited v Singh
Automatic Unfair Dismissal Case
Cadent Gas Limited ran an investigation and subsequent disciplinary process involving Mr Singh, an active trade union member, who was dismissed for gross misconduct because he had responded to a call-out for a gas leak one minute outside of Cadent Gas’ policy. This was due to the fact he had not eaten for some time and stopped on the way for some food. Mr Singh’s failure was noticed by a manager with whom Mr Singh had had difficulties with in the past relating to his union activities. The manager played a leading role in the investigation, amended the terms of reference and was involved in giving incorrect information to HR, as well as referring to Mr Singh’s activities as a trade union representative which were not relevant to the investigation. The disciplinary hearing was conducted by an individual who had had no prior involvement in the matter and a decision was made to dismiss Mr Singh.
Mr Singh brought claims for unfair dismissal, automatic unfair dismissal on the grounds of his trade union activities and wrongful dismissal. His complaint was upheld by a tribunal, even though it concluded that the dismissing officer and the appeal manager were not motivated by prejudice against the claimant for his trade union activities. The employer appealed on the basis that only the 'mental processes' of the dismissing and appeal officers were relevant. The appeal was dismissed, and the employment appeal tribunal upheld the decision that the claimant had been automatically unfairly dismissed as a result of his trade union activities.
The appeal tribunal found that while the dismissing and appeal officer were not motivated by prejudice, this did not preclude a finding that trade union activities played a part in their reasoning. The investigating officer had driven the investigation towards dismissal, including amending the terms of reference and providing incorrect information to those involved.
While the motivation of the decision maker is key, there are situations where the motivation of a non-decision maker may be attributed to the employer, even where that motivation is not shared by the decision maker. The manager's role in the process was identified as a 'manipulator'.
The above case highlights the need for independent investigators, a clearly followed process and objective decision makers. It is important that investigations are not undermined or controlled by those who wish to influence the outcome, even if they are not considered to be key decision makers.
Employers may wish to consider appointing an independent investigator for grievance or disciplinary cases. Robinson Grace HR Consultancy can provide an independent investigator and assist with a step by step process to follow.
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