235: Dismissal unfair because investigating officer failed to pass on relevant information to dismissing manager
In Uddin v London Borough of Ealing, the Employment Appeal Tribunal (EAT) held that an employee was unfairly dismissed where the investigating officer had failed to inform the dismissing manager that the alleged victim of a sexual assault by the employee had withdrawn her police complaint.
Mr Uddin was summarily dismissed for gross misconduct after it was alleged that he had sexually assaulted a work placement student during after-work drinks. The investigating officer had urged the alleged victim to make a complaint to the police and included this fact in his written report, which recommended disciplinary proceedings for gross misconduct. He later learned that the student had withdrawn her police complaint but did not pass this fact on to the dismissing manager or Mr Uddin prior to the disciplinary hearing. In a letter explaining her decision, the dismissing manager stressed that she had attached weight to the fact that the alleged victim had complained to a manager and to the police. Mr Uddin brought a claim for unfair dismissal.
The Employment Tribunal dismissed Mr Uddin’s claim, having concluded that regardless of the fact that the dismissing manager had not known that the police complaint had been withdrawn, there had been sufficient information on which she had been entitled to draw her conclusions and reach her decision to dismiss.
The EAT has now allowed Mr Uddin’s appeal and substituted a finding that his dismissal was unfair. Applying the Supreme Court’s decision in Royal Mail Group v Jhuti, the EAT noted that the knowledge or conduct of a person other than the person who actually decides to dismiss could be relevant to the fairness of a dismissal. This could include failing to share a material fact with the decision-maker. In this case, the EAT ruled that the Employment Tribunal should have concluded that fairness demanded that the dismissing officer should have been informed of and taken into account the fact that the police complaint had been withdrawn. As this did not happen, Mr Uddin’s dismissal was unfair. At the remedy stage, the Tribunal would then need to consider whether the dismissing officer would have fairly dismissed Mr Uddin, had she been aware of and considered the additional information.
As the EAT observed in this case, when considering whether there has been a reasonable investigation, Tribunals must consider the overall process of gathering and examining evidence up to the point the decision is taken. This highlights the importance of ensuring that all those involved in the investigation and disciplinary process understand the need to provide accurate and up-to-date information to decision-makers. Prior to taking their decision, managers should also take steps to establish whether there have been any further developments since the investigation report was concluded. Failure to do so may undermine the dismissing manager’s ability to consider the true position and could therefore affect the reasonableness of their decision-making.