In the recent case of Uddin v London Borough of Ealing UKEAT/0165/19/RN, the Employment Appeal Tribunal found that an employee had been unfairly dismissed because the investigating officer had failed to pass on key information to the dismissing officer.
The law
Section 98(1) of the Employment Rights Act 1996 (ERA) provides that for a dismissal to be fair, the employer must be able to show that it relied upon a potentially fair reason for dismissal (conduct, capability, redundancy etc.).
Last year, in the case of Royal Mail Group Ltd v Jhuti [2019] UKSC 55, the Supreme Court held that where a manager had hidden the real reason for dismissal from the dismissing officer, the court needed to look behind the dismissing officer’s decision for the real reason. In that case, a more senior manager than the dismissing officer decided that Ms Jhuti should be dismissed because she made protected disclosures. He “trumped up” a performance management process against Ms Jhuti. At the end of that process a separate manager, unaware of Ms Jhuti’s disclosures, then came to the decision to dismiss on the grounds of poor performance. The Supreme Court held that the real reason for the dismissal were Ms Jhuti’s disclosures, not performance, and her dismissal was therefore unfair.
Section 98(4) of the ERA provides that once the employer has shown a potentially fair reason for dismissal, it must then demonstrate that it acted reasonably in treating that as sufficient reason for dismissal, depending “on the circumstances (including the size and administrative resources of the employer’s undertaking)”.
The facts
Mr Uddin, a 43 year old man, had attended a work drinks event hosted by his employer, London Borough of Ealing (the Council) at a local pub, where he and three others remained until after midnight. One of the other individuals who remained was a 26 year old female student (SR) who had been on a three month placement at the Council. Both SR and Mr Uddin were intoxicated, and CCTV showed that they were sitting closely together with Mr Uddin’s arm around SR’s waist. They then both went to the disabled toilet, which led the other two remaining employees to knock on the door, uncomfortable at what was happening.
SR later complained that Mr Uddin had sexually assaulted her. The Council investigated matters and the investigating officer, Mr J, encouraged SR to go to the police. In the meantime, Mr J concluded his investigation report and a separate manager, Ms F, was appointed to conduct a disciplinary hearing. When SR did report the matter to the police, they concluded there was not sufficient evidence to proceed with a prosecution. SR then withdrew her police complaint, and informed Mr J that she had done so. Mr J did not pass on that information to Ms F.
Ms F held the disciplinary hearing and concluded that Mr Uddin should be dismissed for gross misconduct. She based her decision on a number of factors, including the fact that SR had made a complaint to the police.
Mr Uddin brought a claim of unfair dismissal on the basis that it was not reasonable for the Council to rely upon gross misconduct as the reason for the dismissal as the Council knew (even if Ms F did not) that SR had withdrawn her police complaint.
The tribunal found in favour of the Council. It was held that Ms F had sufficient information on which to make a fair decision to dismiss.
The decision
On Appeal, the Employment Appeal Tribunal (EAT) found that the dismissal was unfair. The EAT considered the principles set out in Jhuti. Whilst the Supreme Court’s decision in Jhuti involved the reason for the dismissal (under section 98(1) of the ERA), the EAT in Uddin applied the same principles to whether it was reasonable for an employer to rely upon the given reason (section 98(4)).
The EAT held that the investigating officer’s knowledge of key information (in this case that SR had withdrawn her police complaint) was sufficient to demonstrate that the employer knew that information, even if the dismissing officer remained unaware. The EAT held that the withdrawal of the police complaint meant that it was not reasonable for the Council to rely upon gross misconduct as the reason for dismissal, meaning that the dismissal was unfair.
Comment
This case reinforces the principle that the employer’s knowledge is not always limited to what is in the mind of the manager making the decision to dismiss. If someone who is closely connected to the process, such as the investigating officer or someone further up the hierarchy in the employer, knows of something which would make it unreasonable for the employer to rely upon a certain reason for dismissal, it could make a dismissal unfair.
Employers should therefore ensure that those conducting investigations provide all relevant information to the decision-makers in the process.
Rebecca Berry