Dismissal unfair where decision-maker not given accurate information

Background

The Supreme Court (SC) recently ruled that an employee’s dismissal was by reason of her whistleblowing and automatically unfair, despite the fact the decision-maker was unaware she had made protected disclosures and genuinely believed she was a poor performer (Royal Mail Group Ltd v Jhuti). The decision-maker had been manipulated by another manager who wanted to get rid of the employee because of her whistleblowing. The SC concluded that the real reason for the dismissal was the whistleblowing but was hidden behind the reason of poor performance invented by the manager.

Importantly, the SC’s reasoning in Jhuti about identifying the real reason for dismissal is not limited to automatic unfair dismissal for whistleblowing but could apply to all types of unfair dismissal. In the case discussed below, the Employment Appeal Tribunal (EAT) followed Jhuti in deciding a case of “ordinary” unfair dismissal for misconduct.

Facts of the case

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 that Mr Uddin and SR were both drunk and acting affectionately towards each other. They were seen going into a toilet together, before other work colleagues who were present banged on the door asking them to come out.

SR later alleged that Mr Uddin had dragged her to 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 Mr Jenkins, who was aware of this, did not inform Ms Fair. Based on the evidence presented to her, Ms Fair concluded that Mr Uddin was guilty of gross misconduct and dismissed him with immediate effect. Mr Uddin brought a claim of unfair dismissal.

Employment Tribunal decision

The Employment Tribunal (ET) rejected the claim, concluding that the employer had reasonable grounds for deciding that SR’s account was to be preferred and Mr Uddin had committed gross misconduct. Although Ms Fair had relied on SR’s police complaint as supporting her version of events, while not being aware she later withdrew it, the ET found that Ms Fair had already established sufficient evidence for her conclusions. If she had known about SR’s withdrawal of her police complaint, it would have made no difference.

Mr Uddin appealed to the EAT, arguing that the SC’s decision in Jhuti meant that Mr Jenkins’ knowledge of the police complaint having been withdrawn should have been attributed to the Borough as employer in deciding on Mr Uddin’s dismissal.

The EAT’s judgment

Allowing the appeal, the EAT said that while Jhuti was directly concerned with situations where a manager had manipulated evidence or where the investigating officer had a different reason for acting from the dismissing officer, the principles established by the SC were broader than that. According to the EAT, Jhuti established that the knowledge or conduct of a person other than the person who decided 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.

This meant that Mr Jenkins’ failure to share a material fact with Ms Fair could be relevant to the consideration of whether the dismissal was fair the EAT said. The fact that he knew SR had withdrawn her allegations to the police, and that Ms Fair had made her decision in ignorance of that, was something the ET should have considered. The EAT noted there was evidence that Ms Fair had relied on SR’s report to the police as one of the reasons evidencing that Mr Uddin was guilty of gross misconduct, and she had also admitted that if she had known 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 Mr Uddin’s dismissal unfair. It therefore substituted a finding of unfair dismissal.

Implications for employers

“What you don’t know can’t hurt you” has always been a debatable saying, which could be the topic of a philosophy essay. This case shows it will not generally be an advisable approach for employers to adopt in relation to workplace disciplinary matters.

This EAT’s judgment reinforces the SC’s reasoning in Jhuti, further emphasising the importance for employers to undertake 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 that 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 they have a continuing duty throughout the whole process to provide information which is and remains accurate.

Uddin v London Borough of Ealing – judgment available here