Exploring the difference between why you do something and why it happens sounds like one of those abstract A-level Philosophy questions about whether you are a prince dreaming you are a butterfly or the other way around, but without the ability to ask whether anyone cares anyway. However, the question is also key to determining a number of possible Employment Tribunal claims around retaliation, in particular for whistleblowing or trade union activity.
Last year the Court of Appeal decided in Royal Mail –v- Jhuti that when looking at the grounds for someone’s dismissal the Employment Tribunal is “obliged to consider only the mental processes of the person who was authorised to and did take the decision to dismiss“. In other words, if his own motivation was untainted by considerations of earlier protected disclosures or trade union activities, it did not matter if someone further back in the chain of causation leading to the dismissal had acted improperly on those grounds. As a proposition this is clean and easy to understand, and therefore inevitably too simplistic in practice since it leads to the unhappy conclusion that an embittered manager could wreak all sorts of havoc with the evidence earlier in the process and so long as the dismissing officer was unaware that he was being played, his decision could not be tainted. Therefore Jhuti included an exception, i.e. “where someone other than the ultimate decision-taker has a formal role in the decision-making process“.
In Cadent Gas Limited –v- Singh earlier this month we have an example of that exception in practice. Singh was dismissed when he was late to an emergency gas leak call-out because he had stopped for a bite on the way there, contrary to the terms of his contract. Arguable so far, but then we note that he had nearly 30 years’ blameless service, had just done a full shift without food, and was only one minute outside his deadline. The call-out was both late (giving him less time to get there) and in breach of Cadent’s own risk management guidelines. Others in similar defaults had received no more than a final warning at worst, so what happened to Singh?
He claimed that he had been unfairly dismissed on the grounds of his trade union activity. Reading between the lines of the EAT’s judgement, it is indeed possible to conclude that Singh was a regular and enthusiastic bringer of complaints about union-related things from health and safety to work allocation, but also that he was at least sometimes justified in this. A number of his complaints were about a particular senior manager, Mr Huckerby, so the latter clearly thought all his Christmases had come at once when Singh’s diversion via KFC put him in breach of Cadent’s emergency call-out policy.
Actually it is hard to tell what Huckerby thought since he was not called as witness by Cadent, thereby leaving a vacuum where ideally there would have been some positive explanation for his conduct. That had included telling Singh that he was facing a gross misconduct charge even before the investigation was complete, making the suggestion that as trade union official Singh might influence his colleagues (to do what, exactly, was left unclear), tweaking the disciplinary terms of reference to include mention of Singh’s trade union role, implying that Singh has lied about his activities at the call-out, and concealing from the disciplinary manager, Mr Wilson, that the call-out had been late and that according to Cadent’s own rules, it shouldn’t have been Singh anyway. In Huckerby’s absence there was no explanation for any of this. Into that vacuum the Employment Tribunal was happy to infer retaliation for Singh’s trade union activities.
Mr Wilson did not have any grounds to believe Huckerby’s involvement was tainted by ill will towards Singh on trade union grounds so going back to the main Jhuti test above, that should have been the end of it. However, where Huckerby’s influence behind the scenes appeared so malign, the decision to dismiss Singh for what Wilson regarded as misconduct could not be divorced from that influence. In other words, while Wilson’s personal reason for his decision was misconduct, the main cause was actually his trade union activities, in that had Huckerby not skewed the inputs to Wilson on those grounds, Singh would not have been dismissed.
Even against the background of the colossal hospital pass he had received from Huckerby, however, Wilson could still have done better to preserve his own credibility. In particular, he airily dismissed suggestions that others had been more favourably treated in similar circumstances on the grounds that “a final written warning is as serious as being dismissed for gross misconduct”. Novel, I suppose, at least.
Lessons for Employers
- This case was about trade union activities but the same principles would apply to allegations of retaliation for whistleblowing and Equalities Act victimisation.
- So far as possible, anyone directly “incriminated” in the allegation should be kept at the greatest distance from the disciplinary process. If he/she is required to have input to it, there should be visible review of its accuracy and balance.
- If that manager’s input to the process is challenged, be prepared to put them up as witness. This may not go well, but it is very unlikely that it will go worse for the business than their not turning up at all.