Automatically Unfair Dismissal
The Claimant, an active trade union member, was a gas engineer. He was required to respond to priority gas leaks without delay. On 19 June 2017, he was called out to a gas leak at 1.13am. The Claimant had not rested properly or eaten for some time but accepted the job. Instead of going directly to the leak, he stopped for some food without telling Dispatch. He arrived at the premises 1 minute outside the hour stipulated in the service level agreement (SLA). The failure to meet the SLA was noticed by Mr Huckerby, a manager with whom the Claimant had had difficulties in the past relating to his union activities. Mr Huckerby played a leading role in the investigation. In the course of internal emails, Mr Huckerby referred to the Claimant’s trade union status which he wanted to keep ‘on the radar’. The Tribunal found these references to be unexplained as were various other steps taken by Mr Huckerby, including his own involvement which was not the norm for a manager of his seniority. Mr Huckerby was also found to have given incorrect information to HR and to the dismissing officer in the course of the investigation. The disciplinary hearing was conducted by Mr Wilson, who had not had any prior involvement. He decided to dismiss the Claimant for gross misconduct.
The Claimant claimed, amongst other matters, that the reason or principal reason for his dismissal was because of his trade union activities contrary to s.152 of the Trade Union and Labour Relations (Consolidation) Act 1992. The Tribunal upheld that complaint. In doing so it had concluded that Mr Wilson and Mr Dennis (the manager hearing the appeal) were not motivated by prejudice against the Claimant for his trade union activities and cited a case (Dundon v GPT) that was not mentioned in the course of the hearing. The Respondent appealed on the grounds that having found that Mr Wilson and Mr Dennis were not motivated by prejudice against the Claimant for his trade union activities that was the end of the case, and that there was no scope for attributing Mr Huckerby’s trade union animus to the Respondent in these circumstances.
Held, dismissing the appeal, that the Tribunal’s finding that Mr Wilson and Mr Dennis were not motivated by prejudice did not preclude a finding that trade union activities played a part in their reasoning. The reference to Dundon was not incorrect and it had not played such a central role in the Tribunal’s judgment that there was any material injustice caused by not giving the parties an opportunity to comment on it.
In any event, the Tribunal’s analysis was such that it fell into one of the manipulator scenarios posited by Underhill LJ in Royal Mail v Jhuti [2018] ICR 982. In particular, Mr Huckerby was a manager deputed by the employer to carry out the task of investigating the misconduct. His leading role in the investigation was such that it was appropriate, in the circumstances of this case to attribute his motivation to the employer, even though that motivation might not be shared by Mr Wilson or the appeal officer, Mr Dennis.
Citations:
[2019] UKEAT 0024 – 19 – 0810
Links:
Jurisdiction:
England and Wales
Employment
Updated: 15 October 2022; Ref: scu.646852
