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Unfair Dismissal: Ignorance may not be bliss

02 March 2020
In the case of Uddin v London Borough of Ealing, a dismissing officer dismissed an employee for gross misconduct arising from alleged inappropriate sexual behaviour, without being informed by the investigating officer that the victim had withdrawn her complaint to the police.

The Employment Appeal Tribunal ("EAT") has held that the employer was liable for unfair dismissal. The EAT considered the case of Royal Mail Group v Jhuti [2019] UKSC 55 ("Jhuti"), where the Supreme Court had held that knowledge held by someone other than the decision-maker could be attributed to the employer when considering the real reason for a dismissal.

Background 

The Claimant was dismissed from the Borough of Ealing for gross misconduct after being accused of inappropriate sexual behaviour towards a student on a placement. Both the student and the Claimant had been drinking alcohol at a work event at a pub. The student alleged, amongst other things, that the Claimant made several inappropriate remarks to her and dragged her to the disabled toilets. She also suggested she was physically harmed, producing photographs showing bruising to her chest. The Claimant could not remember most of the events from the night in question, but denied the allegations made against him. 

Disciplinary Hearing

The student made a statement to the police after being urged to do so by the investigating officer ("IO"), Mr Jenkins. After watching the CCTV footage, a police officer challenged inconsistencies and multiple discrepancies in the victim's version of events. The victim subsequently withdrew her allegations against the Claimant. The victim signed a withdrawal statement and said that she did not remember being sexually assaulted. The IO did not inform the dismissing officer ("DO") of these developments, even though they occurred prior to the disciplinary hearing. The Claimant was dismissed for gross misconduct. The DO upheld all the allegations, noting that the victim had complained to a manager and gone to the police.

Employment Tribunal

The Employment Tribunal dismissed the Claimant's unfair dismissal claim. The Tribunal decided that, although the DO was unaware that the police complaint had been withdrawn, there was sufficient evidence to justify her decision to dismiss. 

EAT

The Claimant appealed to the EAT on several grounds, including on the basis that the failure to inform the DO of the withdrawal of the complaint to the police rendered the dismissal unfair. 

The EAT considered the case of Jhuti, which decided that, in limited circumstances, an Employment Tribunal can impute to the employer, for the purpose of an unfair dismissal claim, a reason for  dismissal different from that which the individual who took the decision to dismiss relied upon. The EAT acknowledged that the present case did not concern a scenario where the reason for dismissal was invented, as it was in Jhuti. Nonetheless, the EAT concluded that, where a material fact is not shared with the decision-maker by the investigating officer, that could be relevant to the Tribunal's assessment of fairness under section 98(4) of the Employment Rights Act 1996 ("ERA"). 

In the current case, the EAT held that the IO's involvement did not end with presentation of his investigation report and recommendations. The fact the IO knew the student withdrew her allegations from the police, and the DO made her decision without being made aware of this, was something that the Tribunal should have considered for the purpose of determining fairness under section 98(4) of the ERA. The DO knew the student complained to the police and, in her evidence to the Tribunal, suggested that, had she known of the withdrawal, would have wanted to understand the reason for it. The EAT decided that the Tribunal should have concluded that fairness required the DO to be informed of the  withdrawal of the complaint and make an assessment of the impact of that in terms of her decision. Given that did not happen, the Tribunal were bound to find the dismissal was unfair. 

Comment

This case highlights to employers the importance of ensuring that investigating officers disclose all relevant information to the disciplinary process, even if that information comes to their attention after they have submitted their report. Failure to do so may render any dismissal unfair. 

Authored by Tim Scott and Anthony Chinn

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