Under the Trade Union and Labour Relations (Consolidation) Act 1992, it is automatically unfair to dismiss an employee on grounds related to trade union membership or activities.
In this case, the claimant was a senior gas engineer who had been employed by the organisation for 29 years and had an unblemished record. He was also a health and safety representative for the GMB trade union and, in his activities as an active trade union official, had regularly brought forward issues of concern with management. Previously, the claimant had raised a number of grievances regarding the behaviour of a particular manager, MR H, that he had clashed with on union matters.
The claimant responded to a call-out for a gas leak one minute outside of the organisation’s required response time, following which an investigation was implemented. Although he was informed by his manager at the time that no action was likely to be taken, Mr H contradicted this by saying that the issue would be treated as gross misconduct before the investigatory report had been finished.
Although Mr H was not the investigating officer, he remained very involved in the process. When asked why the response time was not hit, Mr H implied that the claimant’s explanation, that he had not been able to access the building in question, was a lie. Mr H also failed to disclose that there had been a 20-minute delay in allocating the job to the claimant.
When considering whether the claimant should be suspended, a note was made that there was potential for him to try and ‘influence peers as a TU rep’. Following the outcome of the investigation, the claimant was dismissed. He later brought numerous claims to the employment tribunal (ET), including that he had been automatically unfairly dismissed on the grounds of trade union activities.
The tribunal found that the claimant had been automatically unfairly dismissed. This was because, although the dismissing officers had not been motivated by the claimant’s trade union membership, Mr H’s involvement had been. In particular, Mr H’s input had led to the claimant receiving a charge of gross misconduct despite other employees in similar circumstances only having a written warning. The references within the investigation to the claimant’s involvement with a trade union were also pivotal in this decision.
The organisation appealed against this decision to the Employment Appeal Tribunal (EAT). They argued that the reason for the claimant’s dismissal had not been related to his trade union activities, as the dismissing officers had not been motivated by this themselves.
The EAT considered if the motivation of others can be properly attributed to the actions of an organisation even if this motivation is not shared by the decision makers. Ultimately, they ruled that Mr H’s ‘meddling’ was enough to uphold the tribunal’s decision due to:
- the clear disputes between Mr H and the claimant relating to trade union activities
- Mr H providing inaccurate information about the claimant
- Mr H instigating the investigation, which was different from the procedure carried out in previous similar incidents that did not relate to trade union activities
- Mr H failing to mention the 20-minute delay and providing false information to the investigation.
There are situations where the motivation and knowledge of a person who is not the decision maker may be attributed to the organisation even where that motivation and knowledge is not shared by the decision-maker. If an organisation is aware that there has been history between a manager and an employee, this manager may not be the best person to be involved in a disciplinary process, including the investigation, and care should be taken before allowing them to influence it in any way.
It is also important that nothing is added into disciplinary documentation that is not relevant. Here, the claimant’s trade union status was incorporated in several places, which ultimately led the tribunal to find that it was a factor in the decision to dismiss.
This case finds similarity with the recent Court of Appeal decision Royal Mail Ltd v Jhuti, where it was held that, in situations where the real reason behind the decision to dismiss an employee is hidden from the decision-maker by an ‘invented reason’, it is the hidden, real reason that should be taken as the true reason for dismissal.