Withholding facts and the fairness of a disciplinary investigation

If an investigator fails to share a material fact with a decision maker, can this affect the fairness of the dismissal? On the facts of this case, yes it did. In Uddin v London Borough of Ealing an investigator did not update the decision maker of a material fact which came to light after they had submitted their investigation report but before the disciplinary hearing. The decision maker was therefore unaware of this material change of circumstances. While each case turns on its facts this case looks at whether hidden reasons can affect the reasonableness of a dismissal.

Background

In Royal Mail Group v Jhuti 2019, the Supreme Court ruled in a whistleblowing case that if a more senior manager has determined that an employee should be dismissed but provides an invented reason to the dismissing manager, the reason for the dismissal is the hidden reason and not the invented reason. Jhuti therefore looked at the first part of the unfair dismissal test – what was the real reason for the dismissal?

Uddin is significant because it has the potential to broaden the application of Jhuti, to the part of the unfair dismissal test which affects the question of reasonableness. While the EAT noted that the strict ratio of Jhuti did not apply, it held that the principles would be relevant to the determination of whether an employer had acted reasonably in treating the reason for dismissal as sufficient.

Facts

Uddin v London Borough of Ealing involved a 43 year old man who worked for the London Borough of Ealing and was alleged to have sexually assaulted a 26 year old female university student referred to as SR, who was on a three month work placement at LBE. The allegations were investigated by the head of LBE’s Youth Offending Service who was also a former police officer. During the course of the investigation the investigator referred SR to the police and she made a formal complaint about Uddin’s conduct. A reference to the police complaint was included in the investigation report and the investigator recommended that there was a case to answer for gross misconduct. After the investigator had concluded the investigation, but before the disciplinary hearing, the investigator was notified that SR had withdrawn her complaint to the police but did not pass this information onto the disciplinary officer. The investigator presented the management case at the disciplinary hearing and the disciplinary officer ultimately decided to dismiss Uddin for gross misconduct.

Uddin made a compliant to the Employment Tribunal for unfair dismissal, wrongful dismissal and sex, age and marital discrimination. The Employment Tribunal ruled that the failure by the investigator to disclose that the police complaint had been withdrawn did not affect the fairness of the dismissal. The EAT disagreed and ruled that the dismissal was unfair. This case summary will focus on the unfair dismissal element as all other complaints were dismissed by both the Employment Tribunal and the EAT.

EAT decision

The EAT highlighted the Employment Tribunal had to first consider whether there had been a sufficient investigation, and a reasonable view formed, at the point when the decision to dismiss was taken (and/or, in an appropriate case when the decision to appeal is taken). The EAT also highlighted while basic and important questions have been identified in British Home Stores Ltd v Burchell 1978 the questions are not exhaustive and there are a number of factors that should be considered when determining the fairness of a dismissal.

In light of the above the EAT outlined that the question for the Employment Tribunal, was whether, the factual circumstances affected the reasonableness of the decision to dismiss and the fairness.

In a potential broadening of Jhuti, the EAT outlined that question of whether the knowledge or conduct of a person other than the person who actually decided to dismiss, could be relevant to the fairness of the dismissal, could arise, both in relation to the Employment Tribunal’s consideration for the reason for the dismissal and the reasonableness of the decision to dismiss. Accordingly, in a case where someone responsible for the conduct of an investigation did not share a material fact with a decision maker, that could be regarded as relevant to the reasonableness point.

The EAT concluded that the dismissal was unfair placing reliance on the following facts. The disciplinary officer had taken into account that the police complaint had been made. She explained in evidence that had she been told that the complaint had later been withdrawn, she would have wanted to know why. The investigating officer knew that the police complaint had been withdrawn, but did not pass this on to the disciplining officer.

Also relevant to this assessment was the fact that the dismissal letter stated that the disciplinary officer had found that Uddin’s behaviour was of an inappropriate nature “based on a number of factors”. The complaint to the police appeared on the list of factors and was said by her to “add weight” to her conclusion that he had behaved inappropriately.

The EAT also noted that given the gravity of the allegations that Uddin was facing – of what amounted to criminal conduct – LBE had a heightened duty of proactive investigation referencing the case of A v B 2003. The question of how the decision maker would have acted had they known the complaint had been withdrawn would affect the award of compensation by virtue of a Polkey reduction.

Practical takeaways

This case does not mean that in every situation where a manager dismisses an employee but there is information within the organisation relevant to the dismissal that the dismissal will always be unfair. This case has a unique factual background as the investigator presented the management case to disciplinary hearing and was aware that the information concerning the withdrawal of the police complaint was potentially significant.

There are some key takeaways that companies can consider when conducting investigations to ensure that a dismissal is not deemed to be unfair:

1. investigators should be informed that the obligation to update management or disciplinary hearings does not end once the investigation report has been finalised, an investigation applies to all evidence that is collected and examined up until a decision is made;
2. appeals and grievance hearings should closely review investigation reports to identify any procedural defects; and
3. particular care will need to be taken for investigations of a serious nature (for example sexual assault cases) and there will be a heightened duty of proactive investigation.