Can a Manager Meddling With a Disciplinary Investigation Render a Dismissal Unfair?
A manager's attempts to manipulate the outcome of a disciplinary investigation could put your organisation at risk of a successful unfair dismissal claim.
The Employment Appeal Tribunal (EAT)has held that even where decision-makers are not aware that an investigation has been manipulated by another manager and have no prejudice towards the employee facing disciplinary action, it is possible for the motive and knowledge of the 'meddler' to be attributed to the employer to render the decision to dismiss unfair.
Cadent Gas Limited v Singh
Mr Singh was a senior gas engineer and active trade unionist, who had been employed by Cadent Gas for 29 years and had an unblemished record. He was dismissed for gross misconduct because he responded to a call-out for a gas leak one minute outside of Cadent's required response time. He had previously raised a number of grievances that he had been unfairly allocated work. On the day of the call-out, he had worked on a complex and demanding job in extreme heat without eating all day and had less than 2 hours' sleep. On his way to the call-out he had stopped to buy food.
Mr Singh was informed by his manager that no action was likely to ensue. However, this was subsequently pursued by a senior manager, a Mr Huckerby, with whom Mr Singh had clashed over trade union matters and in relation to whom some of Mr Singh's grievances had been directed. Mr Huckerby was not the investigating officer but remained very involved with the investigation.
The ET Decision
The Employment Tribunal upheld Mr Singh's claim that his dismissal was automatically unfair because it had been motivated by his trade union activities. It noted that Mr Huckerby had driven the investigation towards dismissal. He provided incorrect information to HR and to the dismissing officer in the course of the investigation due to his prejudice towards Mr Singh's union activities. Although he was not the investigating officer, he had amended the terms of reference and he told Mr Singh that the incident amounted to gross misconduct before the investigation had been concluded.
Cadent appealed the outcome on the basis that the tribunal had found that the decision makers held no prejudice towards Mr Singh and did not share Mr Huckerby's motivation. As such Cadent asserted that the dismissal could not be for trade union reasons.
The Appeal
The EAT dismissed the appeal. Following the comments of Lord Justice Underhill in Royal Mail Group Ltd v Jhuti, the EAT held the motivation of a manager actively involved in manipulating an investigation were attributable to the employer when considering the fairness of the dismissal. Even where the dismissing officer had no knowledge of the manipulation and did not share the same prejudice. The tainted investigation was sufficient to render the dismissal unfair.
Our Guidance for Managers & Staff
The EAT has made an important and considered extension to the protection afforded to employees where their dismissal follows an investigation which has been deliberately manipulated by another individual. The case serves as a reminder for employers to ensure that managers conducting disciplinary investigations are provided with clear guidelines to identify and report any attempts to interfere with their investigation.
Staff should be cautioned that any attempts to interfere with or manipulate the outcome of a disciplinary investigation will attract disciplinary action. Managers with responsibility for conducting disciplinary hearings should be given suitable training to include the need to fully consider and challenge the findings of the investigation when reaching their decision.
The EAT set out four important matters in relation to dismissals for impermissible reasons including whistleblowing.
- Even if the dismissing officer was not motivated by the impermissible reason (i.e. trade union membership, whistleblowing) the employer can still be fixed with the motive of someone who has manipulated the dismissal if they were part of the investigation process.
- Manipulation can take many forms, including withholding information, or steering an investigation towards dismissal, and is not limited to direct contact with the dismissing officer.
- The (practical) boundary around those whose motivation may be attributed to the employer is (as in this case) the person or persons carrying out the deputed function of the employer in the investigation.
- There is an important distinction to be borne in mind in determining whether a dismissal was for an impermissible reason. Namely that prejudice or malice on the part of the employer is not necessary where the impermissible reason was nevertheless the sole or main reason for the dismissal.