EAT considers the impact of a material fact not being shared with a dismissing officer in deciding whether an employer has acted reasonably when dismissing - Uddin v London Borough of Ealing

In Royal Mail Group v Jhuti the Supreme Court held that, if the real reason for the dismissal is hidden from the decision-maker behind an invented reason, the reason for the dismissal will be the hidden reason. In this case the Employment Appeals Tribunal (‘EAT’) considered whether this principle applies in the context of deciding whether the dismissal is fair.

The Claimant was dismissed for gross misconduct following allegations that he sexually assaulted a student at a post work gathering. The investigating officer became aware that the allegation of sexual assault made by the student to the police had been with withdrawn, but did not inform the dismissing officer of this fact before the disciplinary hearing, in which the Claimant was subsequently dismissed.

The Claimant brought various claims including for unfair dismissal. The employment tribunal (‘ET’) held that the dismissal was fair and the Claimant appealed.

The EAT upheld the appeal in relation to the unfair dismissal ground and held that the failure to inform the decision maker of the change in circumstances affected the reasonableness of the decision to dismiss and therefore, the dismissal was unfair.

The Court considered the effect of Royal Mail Group v Jhuti and noted that this decision related to whether, and if so in what circumstances, in an unfair dismissal claim a tribunal could impute to the employer a reason for dismissal which was different from the reason that had been in the mind of the person who took the decision to dismiss. The Claimant argued that this principle should apply to this situation.

The EAT decided that in this case, as the investigating officer did not have a different reason to the reason that was relied on by the dismissing officer or on which the appeal panel upheld the dismissal, the strict ratio from Royal Mail Group v Jhuti did not apply.

It was however concluded that the Supreme Court’s decision in Jhuti extended more widely and the knowledge or conduct of a person other than the person who actually decided to dismiss could be relevant to the fairness of a dismissal, both in relation to the tribunal’s consideration of the reason for dismissal and its consideration of fairness. The investigating officer’s failure to share a material fact with the decision maker could therefore be relevant to the question of whether the dismissal was fair.

The dismissing officer knew that there had been a police complaint and attached weight to this when making their decision to dismiss, she further admitted that had she of known the material fact, she would have wanted to understand the reasoning behind the withdrawal of the complaint. In light of this, the EAT held that the Tribunal should have concluded, at the liability stage, that fairness demanded that the dismissing officer be informed of, and consider, the fact that the police complaint had been withdrawn. As they were not aware, the ET would have been bound to conclude that the dismissal was unfair.

The decision is a reminder for employers faced with disciplinary action, that a thorough and fair investigation must be conducted to avoid any potential claims from former employers, in line with any up to date policies. It further highlights the importance of ensuring the decision maker is in possession of all the facts.