New EAT judgment finds an investigator’s failure to share an emerging material fact with decision-maker prior to dismissal to be unfair

The Employment Appeal Tribunal (EAT) has deemed that an investigator’s failure to share a newly emerged material fact with the decision-maker prior to dismissal to be procedurally unfair in the case of Uddin v London Borough of Ealing.

The Claimant, a Deputy Team Leader in the employer’s family intervention programme, was accused of inappropriate sexual behaviour with a university student who was on work placement with the London Borough of Ealing (the Respondent). The Claimant was suspended pending investigation into his conduct, and a Police complaint was filed against him. Following an internal investigation into the allegation the Claimant was invited to attend a disciplinary hearing with the outcome being that the disciplinary officer held that the Claimant should be dismissed for gross misconduct. The disciplining officer came to this decision based on a number of factors, including the fact that the university student involved in the allegation had filed a Police complaint against the Claimant.

The Claimant issued Employment Tribunal (ET) proceedings against the Respondent for unfair dismissal, wrongful dismissal and discrimination on the grounds of age, sex and marital status. The ET dismissed the claims.

The Claimant appealed to the EAT. The Claimant’s appeal focused on the fact that the university student had withdrawn her  complaint to the Police, but the manager who took the decision to dismiss, who knew that the Police complaint had been made and factored this into her decision making process, was not told that it had been withdrawn. The ET at first instance had held that the fact that the Police complaint had been withdrawn did not impact on the fairness of the dismissal as even in the absence of the Police complaint ever being made, the disciplinary officer would have been entitled to dismiss in any event.

The EAT disagreed and found that:

• The investigating officer knew that the Police complaint had been withdrawn, but did not pass this on to the disciplining officer;
• In coming to a decision to dismiss the disciplining officer took into account that the Police complaint had been made and placed weight on this; and
• The disciplining officer’s evidence was that, had she been told that the complaint had later been withdrawn, she would have wanted to know why and would have taken the answer into account when reaching her decision.

In light of the above the EAT held that the only proper conclusion was that this rendered the dismissal unfair. The EAT made reference to the rule set out in the case of Royal Mail Group v Jhuti, which set out that the knowledge of another individual can have an influence on the fairness of a dismissal even where that individual is not the decision maker themselves. 

The question and likelihood of whether the disciplining officer in this case would have dismissed in any event if she had knowledge of the fact that the Police complaint had been withdrawn was not enough to render the dismissal fair and was instead something that  would be limited to discussions around remedy, with there being a potential argument that even if the dismissal was unfair the outcome would ultimately have been the same in any event, which if established could serve to reduce any award the Claimant would receive.

This case should remind employers of the need keep accurate, and detailed records of investigatory and disciplinary meetings, and to keep any decision-makers informed of any changes to the allegations made against an employee or any material change in circumstances, as failure to do so may result in an a finding of unfair dismissal against the business.

For more information on this please contact Kirsten Currer and Simona Kalnina from the Employment Team.