Case update (3):  Unfair dismissal – Who’s in the know?

Summary:  Is the knowledge of a person other than the dismissing manager, relevant to the fairness of a dismissal?

Yes, says the EAT in Uddin v London Borough of Ealing, available here.

Background:  The Supreme Court in Royal Mail v Jhuti (see our update here) held that where the reason for a dismissal given in good faith by the dismissing manager turns out to be a fictitious reason (due to another manager manipulating the facts), it is the hidden reason (rather than the fictitious reason) that is the true reason for a dismissal.  So in that case the true reason for dismissal was found to be whistleblowing, even though the dismissing manager was ignorant of this.

In Jhuti the Supreme Court indicated that the principle of attributed knowledge could also be extended more widely to the question of the reasonableness of the dismissal.  The below EAT’s decision in Uddin demonstrates the extension of that principle.

Facts:   Mr Uddin, the employee, was employed by the London Borough of Ealing.  An allegation of sexual assault was made against him by a female colleague (a student on a work placement).  The colleague alleged that Mr Uddin had assaulted her in a disabled toilet at an after work drink.  At the suggestion of the employer, she also complained about this to the police.  However, after a police officer identified inconsistencies and discrepancies in her account, she withdrew the allegations.

The employer investigated the allegations, including reviewing CCTV footage in the bar which showed Mr Uddin and the female employee touching each other affectionately before they went to the toilet. The investigation report suggested that the Mr Uddin was guilty of sexual assault and a disciplinary hearing was held at which he was dismissed.  The dismissing manager agreed with the findings in the report and attached weight to the fact that the female employee had decided to file a police complaint.  However, the investigating officer had failed to tell the dismissing manager, before she made her decision, that the female employee had later withdrawn the police complaint.

Mr Uddin brought a Tribunal claim for unfair dismissal. The Tribunal dismissed the claim.  It held that the dismissing manager had reasonable grounds on which to dismiss based on the evidence available to her.

Mr Uddin appealed.

The EAT upheld the appeal.  The EAT found that the fact that the investigating officer had not shared a material piece of evidence with the dismissing manager, affected the fairness of the dismissal. The knowledge and conduct of the investigating officer, as per the principle in Jhuti (see Background), could be attributed to the dismissing manager for the purpose of establishing the reason for dismissal.

The EAT commented that the “high investigative standard“ required for fairness in such cases meant that the dismissing manager should have taken the withdrawal of the complaint into account. As a result, if the Tribunal had approached the issue correctly, it would have found that the dismissal was unfair.

The EAT referred the case back to the Tribunal to reconsider the fairness of the dismissal.

Implications:  This is an important case as it confirms that knowledge of others may be attributed to a dismissing manager.  In other words, courts can look beyond a decision maker’s reason for dismissal and attribute any hidden, and unfair, reason to the employer.

This highlights that in order for there to be a fair dismissal, the investigation should be thorough, impartial and transparent, which reviews and includes all potential relevant information. Further, dismissing managers should be trained on the scope of their role; including the importance of probing all versions of any evidence presented to them to uncover any missing or misleading facts. For example, it should be part of the dismissing manager’s duties to ask whether there have been any further developments since the investigation report was presented.  Also, those involved in the investigation could be asked to confirm that there is nothing misleading about their account.

If you ever have concerns about the validity of a reason for dismissal and want a second opinion, or want help with running an investigation, then please do get in touch via enquiries@menzieslaw.co.uk or 0117 325 0526.

 

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