The Employment Appeal Tribunal has considered whether knowledge held by a manager but not disclosed to the one responsible for the decision to dismiss can be attributed to the employer, in establishing the reasonableness of the dismissal.

Uddin v London Borough of Ealing, UKEAT/0165/19

Facts

The claimant was dismissed for gross misconduct following allegations of sexual assault made against him by a student on a work placement. The employer commenced an investigation into the incident, and the investigating officer encouraged the student to report the incident to the police. The student later decided to withdraw her police complaint.

At the disciplinary hearing, the deciding officer took into account the police complaint in support of the student’s version of events. She was unaware that by then, the student had withdrawn her complaint. She concluded that the allegations should be upheld and that the claimant should be dismissed for gross misconduct. The investigating officer knew that the police complaint had been withdrawn, but had not informed the deciding officer.

An employment tribunal rejected the claimant’s unfair dismissal claim, finding that the respondent had reasonable grounds for concluding that the claimant had committed gross misconduct. It had conducted a thorough investigation and the decision was reached on the evidence rather than being influenced by what the tribunal considered to be a hostile approach on the part of the investigating officer. The police complaint was a factor relied upon as a reason for believing the student’s version of events, but there was already sufficient evidence to support the deciding officer’s conclusions.

The claimant appealed to the EAT, relying upon the recent Supreme Court decision in Royal Mail Group v Jhuti (a whistleblowing case) in arguing that knowledge of the withdrawal of the police complaint should have been attributed to the employer in relation to its decision to dismiss.

EAT decision

The EAT upheld the claimant’s appeal and substituted a finding of unfair dismissal. The principle established in Jhuti, that the true reason for a dismissal can be attributed to the employer if it has been ‘hidden’ from the decision-maker, is also relevant to the question of whether the decision to dismiss was reasonable. In other words, it extends to the procedure followed by the employer in reaching its decision to dismiss. If someone responsible for the conduct of an investigation does not share a material fact with the decision-maker, this will be relevant to the question of whether the dismissal was fair.

Consequences

This case provides an example of how the principles established in the Jhuti case will apply beyond cases involving whistleblowing allegations. If an employer’s decision-maker has been misled in reaching his or her decision by a manager involved in the investigation, that knowledge can still be imputed to the employer in deciding whether a dismissal is fair. It underlines the requirement for investigations to be conducted both thoroughly and impartially in order to be in the best position to defend a future claim for unfair dismissal.

This article is from the February 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.