UK: Who Knew? Investigating Officer's Failure Made Dismissal Unfair

There have been several cases recently, including the Supreme Court decision in Jhuti v Royal Mail Group Ltd, in which courts and tribunals have had to decide whose motivation is attributable to the employer when deciding what the reason for dismissal is. In Uddin v London Borough of Ealing the EAT considered whether those principles applied to a situation in which an investigator failed to inform a disciplinary manager that a police complaint had been withdrawn. Although the case was not on all fours with Jhuti, the EAT found that the knowledge of someone who was not the decision taker could be relevant not only to the reason for dismissal but also to the overall fairness of a decision to dismiss.

The claimant was accused of sexually assaulting a colleague after a night of heavy drinking. Neither party could remember much about what had happened. Although the alleged victim of the assault initially reported the incident to the police, she later withdrew her allegation (after the employer's initial investigation had been completed). The claimant was dismissed for gross misconduct. One of the factors the disciplinary manager took into account was the alleged victim's decision to report the incident to the police. The disciplinary manager did not know that the alleged victim had retracted her police complaint, even though this was known to the investigating officer.

The EAT overturned the tribunal's decision that the dismissal was fair. Although the decision in Jhuti was not strictly on point, because it dealt with a very different factual scenario, it indicated that an investigator's failure to share information with a decision taker could be relevant to the question of fairness. In this case there was a high investigative standard, the information known to the investigator could be treated as known to the employer, and it was evidence that potentially supported the claimant's case. The decision taker had taken account of the police report and had told the tribunal that if she had known that the report had been withdrawn she would have wanted to understand why. Had the tribunal considered the issue properly, it would have been bound to conclude that the claimant's dismissal was unfair.

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