I just wanted to thank you personally for the professional support you provided to the management team during our business re-structuring.
My case report illustrates the importance of the investigating manager conducting an impartial and objective investigation. Get this wrong and the employer will struggle to show a subsequent dismissal was fair.
Simon Quantrill | Principal Solicitor at Quantrills
The reason for the dismissal
At the disciplinary hearing the dismissing manager was satisfied that Mr S, the claimant, had negligently failed to attend a gas leak emergency within the required 60 minutes. Mr S, who had many years’ unblemished experience, was then summarily dismissed for gross misconduct.
The claimant argued that the original investigating manager resented him because of his trade union activities and the many issues the claimant had raised as part of his union duties. The employment tribunal agreed and said the dismissal was automatically unfair because the investigating manager’s approach to his fact finding and presentation of the evidence against the claimant amounted to undue influence. This type of interference is an example of what is known as a ‘manipulation case’.
As I so often find, the background facts help to illustrate what went wrong for the respondent.
The claimant was a well-regarded, hardworking and experienced gas engineer. He had no previous disciplinary or capability warnings against him. However, he was a busy and robust trade union official not slow in raising, what the tribunal considered were always justified, health and safety issues or concerns. These often ended up on Mr H’s desk who as it turned out was tasked to investigate the disciplinary case against the claimant. However Mr H resented the claimant’s trade union activities and went about the investigation with a misplaced determination to build an unjustified and unfounded disciplinary case against him.
On a hot day in July in 2018 the claimant had already completed a full day’s shift. Late at night he received a telephone to attend a priority one gas leak. He explained to the control room dispatcher that he had already done more than his allocated hours, had no rest and no food. The control room made it clear to the claimant that he was the only available engineer to respond. The claimant therefore believed he had no choice so conscientiously set out. On route he realised he should eat and he stopped for no more than 13 minutes at a Kentucky Fried Chicken takeaway. He arrived on scene just one minute outside of the required one hour time limit. The claimant was unable to gain access to the gas leak and in consultation with the control room was stood down, in accordance with the respondent’s fatigue at work policy. From the claimant’s perspective he went home and regarded the matter as closed.
Subsequently, the claimant’s line manager, Mr H, was notified of this technical breach of the one hour rule and his initial investigations led him to report the matter to HR. In his report to HR he was less than transparent and comprehensive about the facts of what happened. This led the HR business partner to recommend a case for disciplinary action to be taken and Mr H was asked to lead the investigation.
Another manager was eventually appointed to complete the investigation but he was heavily influenced by the information provided to him by Mr H. The subsequent investigation was poorly conducted and did not include talking to the control room dispatcher or looking at how other similar cases had been dealt with by the respondent. At the disciplinary hearing the claimant’s explanations and mitigation were essentially ignored and he was summarily dismissed without notice or payment in lieu of notice for gross misconduct. His appeal was also unsuccessful.
Dismissal was automatically unfair
The employment tribunal concluded that the dismissal was automatically unfair. It made no Polkey reduction but made a 20% reduction for contributory fault – probably based on the fact that the claimant stopped off at Kentucky Fried Chicken and/or accepted the call out even though he knew he was well over his safe working limits and was already feeling fatigued.
The employment tribunal concluded that the disciplinary case against the claimant was unjustified and came about because of his trade union activities and that in particular, his line manager, Mr H, had been motivated to bring an unfair and unjustified case of gross misconduct against him.
At the employment tribunal the dismissing officer in his evidence said he did not share Mr H’s resentment of the claimant. However the tribunal said he did but that in any event given the facts of the case it was appropriate to take into account the motivations of Mr H given his involvement in the disciplinary investigation. The EAT agreed.
On appeal, the EAT held that it was correct for the employment tribunal to take into account the influence Mr H had over the dismissal of the claimant, even though he was not the decision taker at the disciplinary hearing or appeal hearings.
Mr H was “knee deep” in the investigation and played a leading role in driving it forward. The EAT said the employment tribunal was therefore entitled to attribute Mr H’s motivation to the respondent notwithstanding the fact that such motivation maw well not have been shared by the decision-makers at the disciplinary or appeal hearings. This is an exception to the general rule that only the motivation of the decision taker is relevant.
So what made the dismissal unfair?
Having established a prima facie case of trade union related dismissal the burden of proof passed to the respondent to show a fair reason for the dismissal, but they failed to do this. At the tribunal hearing the respondent’s case tactics led to more problems.
The respondent lost this case because at the tribunal hearing it was unable to justify the scope of the investigation and it did not produce evidence, in particular from Mr H, to explain certain of the claimant’s treatment through the disciplinary investigation process and it provided unsatisfactory explanations for other matters.
The EAT agreed that the employment tribunal’s findings showed that there was a compelling picture of a senior manager, who had a poor history with the claimant by reason of his trade union activities, taking a leading and directing role in the investigation in circumstances where other employees who were not engaged in trade union activities and who had committed similar acts of misconduct were dealt with by local management and not investigated in some way. Moreover, Mr H had contributed to an imbalanced picture being presented to HR which resulted in charge of gross misconduct being laid; a situation that had not arisen for other engineers who were not engaged in trade union activities.
There is no doubt in the tribunal’s mind that Mr H had manipulated the disciplinary investigation. He had withheld key details and made unnecessary and unexplained references to the claimant’s trade union status and the claimant was treated differently from the way others were treated. These matters led the claimant to be subjected to a disciplinary hearing in circumstances where, had it not been for the trade union activities, there would not have been any disciplinary case to answer.
Ask Simon Quantrill for help
It remains the case that the motivation of the decision maker remains key but as this case shows there are exceptions to this general principle. For employers making sure the disciplinary investigation is correctly handled is an essential factor in ensuring any subsequent dismissal is fair.
A significant part of my work for employers is helping them avoid the mistakes the respondent made in this case to ensure any dismissal is fair. If you would like the benefit of my employment law and HR experience please do contact me for a no obligation discussion on how I can help.
Simon Quantrill | Principal Solicitor
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