Cadent Gas Ltd v Singh (AUTOMATICALLY UNFAIR DISMISSAL)

For automatic unfair dismissal based on trade union activities, the statutory question is whether those activities were the reason, or principal reason, for dismissal. Proof of malice, prejudice or hostility is unnecessary; purpose must be distinguished from the causal reason for the dismissal.

Ordinarily the relevant state of mind is that of the authorised decision-maker. However, an employer may be fixed with the motivation and knowledge of a manager formally deputed to investigate alleged misconduct where that manager takes a leading and manipulative role in directing the investigation towards dismissal. This is part of the employer's deputed function. The fact that the ultimate dismissing officer lacks the prohibited motivation does not prevent attribution in such a case.

The claimant was a gas engineer and active GMB health and safety representative. After accepting an emergency call-out when he should have been stood down under the employer's fatigue procedure, he stopped for food and arrived one minute outside the service-level target.

A senior manager with a history of disputes with the claimant concerning trade union activities initiated and drove the investigation. The Employment Tribunal found unexplained references to the claimant's union status, incomplete information given during the investigation, and markedly different treatment from other engineers. It held that trade union activities were the principal reason for dismissal under section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992.

The employer appealed, contending that the dismissing officer and appeal officer lacked prejudice and that the investigator's motivation could not be attributed to it.

1. Appeal dismissed. The Employment Tribunal did not find that the dismissing and appeal officers were unaffected by trade union activities. Its finding was only that they lacked prejudice against the claimant for those activities. That finding was compatible with its further findings that the claimant's union status operated on the dismissing officer's reasoning and that he was held to a higher standard because of it.

2. The reference to Dundon v GPT Ltd was correct. Under section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992, the question is one of causation: whether union activities were the sole or predominant reason for dismissal. The employer need not have acted from malice or prejudice.

3. The Tribunal was also entitled to infer the prohibited reason after the claimant established a prima facie case and the employer failed to provide satisfactory explanations for the investigation and differential treatment. The employer had not discharged its burden of establishing that the reason was simply misconduct.

4. In any event, the case fell within the investigation-manager qualification explained in Royal Mail Group Ltd v Jhuti. The senior manager was formally involved in the employer's investigation and did far more than initiate it. He directed its scope, supplied incomplete and inaccurate information, made unexplained references to trade union status, and helped steer the matter to a gross-misconduct charge. His motivation and knowledge could therefore be attributed to the employer even if not shared by the ultimate decision-makers.

5. The Tribunal's reliance on an authority not canvassed at the hearing caused no material injustice. Dundon was peripheral and merely confirmed an undisputed distinction between causal reason and prejudice. The Tribunal's treatment of the proposed comparator was not perverse because the surrounding circumstances were materially different.

• Employment Appeal Tribunal: dismissed the employer's appeal and upheld the finding of automatic unfair dismissal.
• Employment Tribunal, Leicester: upheld the claimant's complaint under section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992, as well as his ordinary unfair dismissal and wrongful-dismissal claims. The citation is not stated in the judgment.