Bias and prejudice
Employers often work hard to ensure that a disciplinary chairperson is neutral. Two recent cases remind employers that, even if the decision-maker is entirely fair and unbiased, the prejudice of others can land the employer in hot water.
The recent decisions in Royal Mail Group Limited -v- Jhuti and Cadent Gas Limited -v- Singh highlight areas of vulnerability where the investigation is manipulated to affect the result.
Royal Mail Group -v- Jhuti
Ms Jhuti was employed by Royal Mail Group Limited for 11 months, during which she raised various concerns with her manager regarding a colleague’s conduct, believing such conduct was in breach of Royal Mail’s rules and those of its regulator, Ofcom.
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Ms Jhuti’s manager questioned her understanding of the rules and requested that she retract her claims, which she did for fear of losing her job. She made further disclosures to her manager and then, before going on sick leave, contacted HR to complain that she was being bullied and harassed by her manager because of her disclosures. Her performance at work was then called into question and a process began to consider dismissing her for poor performance.
The manager reviewing her performance was aware that Ms Jhuti was upset and had said she was being ‘sacked for telling the truth’ but did not have all the facts.
She, therefore, discussed it with Ms Jhuti’s line manager, who told her that it related to allegations Ms Jhuti had retracted after realising she had misunderstood things. The reviewing manager accepted this and consequently terminated Ms Jhuti’s employment on grounds of poor performance. Ms Jhuti’s appeal was rejected by Royal Mail.
Ms Jhuti claimed against Royal Mail in the Employment Tribunal, a case which then went all the way to the Supreme Court. The court agreed that the dishonest manager’s mind-set (i.e. that he had concocted the story that she was incompetent in her role because he did not like the fact that Ms Jhuit had “blown the whistle”) was the ‘principal reason’ for her dismissal. This was on the basis that, when a manager distorts an investigation, this can lead to a strong case for attributing the motivation and knowledge of the manipulative manager to that of the decision-maker, even if such motivation and knowledge are not shared by the decision-maker.
Cadent Gas Limited -v- Singh
Mr Singh worked for Cadent Gas Limited as a senior gas engineer and was one minute late responding to a gas leak. The delay was caused by him buying food on route, as he had not eaten all day during a long shift. Despite the explanation for Mr Singh’s 60-second delay, his clean employee record over 29 years and that, on the day he was delayed, he had only slept for two hours, Cadent dismissed Mr Singh for gross misconduct.
Mr Singh was a trade union shop steward who had previously raised grievances regarding the unfair allocation of work. A senior manager of Mr Singh (who was the subject of some of Mr Singh’s former complaints) assisted with the investigation into his conduct.
Mr Singh issued proceedings against Cadent for automatic unfair dismissal, alleging that he had been dismissed because of his active role as a trade union steward.
The Tribunal found in favour of Mr Singh, concluding that the manager had steered the investigation in order to encourage Mr Singh’s dismissal.
Cadent unsuccessfully appealed the Tribunal’s decision, arguing, in part, that only the ‘mental processes’ of the actual decision-makers (i.e. not the actions or thought process of someone who had tried to deceitfully sway the investigation at the anticipated detriment of a colleague) should be considered.
The Employment Appeal Tribunal disagreed with Cadent’s submissions, having followed the principles set down in the EAT decision in Jhuti.
The EAT found that this was a case where a non-decision maker’s knowledge and motivation was attributed to the decision-maker and, accordingly, found for Mr Singh.
- Employers can safeguard against claims that investigations have been manipulated and dismissals are, accordingly, unfair by ensuring that:
- the employee overseeing an investigation is unbiased (i.e. not connected to the people and/or events involved within the investigation), is appropriately senior and has the requisite experience to deal with such an investigation
- the employee overseeing an investigation is a different person to the individual making the decision to dismiss
- that the chair of any disciplinary and appeal is neutral (i.e. uninvolved in the investigation or initial decision)
- sufficiently detailed notes and minutes are taken at each stage of the investigation, providing a clear paper trail evidencing the rationale for decisions
- the employees overseeing the investigation and potential subsequent dismissal and appeal hearings do not have a negative professional working relationship (whether presently or historically, as far as an employer can tell) with the employee being investigated/dismissed
- employees attending disciplinary and appeal hearings are offered the chance to be accompanied by a colleague or trade union representative
- the employer complies with the company’s internal investigatory and disciplinary procedures, as well as the ACAS Code of Practice on Disciplinary and Grievance Procedures.