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25 March 2020
The Employment Appeal Tribunal (EAT) has ruled that an employee's dismissal for gross misconduct was unfair because the investigating officer failed to share significant new information with the manager who conducted the disciplinary hearing and decided to dismiss the employee.
The Supreme Court recently ruled that an employee's dismissal was by reason of her whistleblowing automatically unfair, despite the fact that the decision maker had been unaware that the employee had made protected disclosures and had genuinely believed that the employee was a poor performer (Royal Mail Group Ltd v Jhuti) (for further details please see "Whistleblowing dismissal unfair as decision maker manipulated by another manager") . The court held that decision maker had been manipulated by another manager who had wanted to dismiss the employee because of her whistleblowing. Therefore, the court concluded that the real reason for the dismissal was the whistleblowing, which had been hidden behind the reason of poor performance invented by the manager.
Notably, the court's reasoning in Jhuti about identifying the real reason for dismissal is not limited to automatic unfair dismissal for whistleblowing but could also apply to all types of unfair dismissal. In the case discussed below, the EAT followed Jhuti in deciding a case of 'ordinary' unfair dismissal for misconduct.
Mr Uddin, who was employed by the London Borough of Ealing, was dismissed for alleged sexual misconduct towards an intern, SR, following an incident at a pub. CCTV evidence showed both Uddin and SR acting drunk and affectionate towards each other. They were seen going into a toilet together before other work colleagues banged on the door asking them to come out.
SR later alleged that Uddin had dragged her into the toilet and assaulted her. The investigating officer, Mr Jenkins, presented his findings to the disciplinary manager, Ms Fair, including the fact that SR had reported the incident to the police. SR later withdrew her police complaint but Jenkins, who was aware of this, did not inform Fair. Based on the evidence presented to her, Fair concluded that Uddin was guilty of gross misconduct and dismissed him with immediate effect. Uddin brought a claim of unfair dismissal.
The Employment Tribunal (ET) rejected the claim, concluding that the employer had had reasonable grounds for deciding that SR's account was to be preferred and that Uddin had committed gross misconduct. Although Fair had relied on SR's police complaint as supporting her version of events, while not being aware that she had later withdrawn it, the ET found that Fair had already established sufficient evidence for her conclusions. If Fair had known about SR's withdrawal of her police complaint, it would have made no difference.
Uddin appealed to the EAT, arguing that the Supreme Court's decision in Jhuti meant that Jenkins's knowledge of the police complaint having been withdrawn should have been attributed to the borough, as the employer, when deciding Uddin's dismissal.
Allowing the appeal, the EAT held that while Jhuti was directly concerned with situations where a manager manipulates evidence or an investigating officer has a different reason for acting from the dismissing officer, the principles established by the Supreme Court were broader than that. According to the EAT, Jhuti established that the knowledge or conduct of a person other than the person deciding to dismiss, could be relevant in relation to either the real reason for dismissal or (as in this case) the reasonableness of the decision to dismiss.
Therefore, the EAT held that Jenkins's failure to share a material fact with Fair could be relevant to the consideration of whether the dismissal had been fair. The fact that Jenkins had known that SR had withdrawn her allegations to the police, and that Fair had made her decision in ignorance of that fact, was something that the ET should have considered. The EAT noted that there was evidence that Fair had relied on SR's police report as one of the reasons to conclude that Uddin was guilty of gross misconduct; Fair had also admitted that if she had known that SR had withdrawn her complaint, she would have wanted to know why.
The EAT concluded that if the ET had approached the issue correctly, it would have been bound to find Uddin's dismissal unfair. Therefore, it substituted a finding of unfair dismissal.(1)
'What you don't know can't hurt you' has always been a debatable saying. This case shows that it will generally be an inadvisable approach for employers to adopt in relation to workplace disciplinary matters.
The EAT's decision reinforces the Supreme Court's reasoning in Jhuti, further emphasising the importance of employers undertaking thorough investigations into disciplinary-related allegations before making a final decision. It is now clear that even if evidence may not have been intentionally manipulated in order to orchestrate an employee's dismissal, the omission of investigating officers to share accurate and up-to-date facts which could be material to the outcome may be relevant when later assessing reasonableness.
In order to avoid potential problems, employers should consider inserting clear guidance into their policies to ensure that all managers investigating and reporting on disciplinary matters and allegations are aware that they have a continuing duty throughout the whole process to provide information which is and remains accurate.
For further information on this topic please contact Ludivine Gegaden or Toria Barnes at Lewis Silkin by telephone (+44 20 7074 8000) or email (email@example.com or firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) The full decision is available here.
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