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Is a dismissal fair where the investigating officer fails to share material information with the dismissing officer?

Solicitor, Jordan Bruce

The Employment Appeal Tribunal in the case of Uddin v London Borough of Ealing has considered whether the fairness of a dismissal should be affected by the investigating officer failing to share information with the dismissing officer which was material to the disciplinary process.

Background

The Claimant was employed as a deputy team leader by the Respondent. A colleague of the Claimant’s made an allegation to the police that the Claimant had engaged in inappropriate sexual behaviour towards her at a work event. As a result, the Respondent conducted an investigation into the Claimant’s behaviour and began disciplinary proceedings against him.

However, between the investigation and the disciplinary hearing, the investigating officer became aware of the fact that the allegation to the police had been withdrawn. The investigating officer did not inform the manager conducting the disciplinary hearing about this and the decision was made to dismiss the Claimant for misconduct. The Claimant then brought claims for wrongful and unfair dismissal to the Employment Tribunal, in addition to direct sex discrimination and direct age discrimination, which are not relevant to this update.

The Law

When considering whether an employer has dismissed an employee fairly or unfairly, a Tribunal must decide whether the employer has relied on one of the five potentially fair reasons for dismissal and whether the employer acted reasonably in treating that reason as a sufficient reason for dismissal. A Tribunal will assess reasonableness by reference to whether the employer has followed a fair procedure and whether their decision was within ‘the range of reasonable responses’ that a reasonable employer in those circumstances might have taken.

Decision

The Employment Tribunal dismissed the claim, so the Claimant appealed to the Employment Appeal Tribunal (“EAT”).

The EAT allowed the appeal. It concluded that the investigating officer’s failure to relay the material information to the dismissing officer should have been considered by the Tribunal when deciding whether the Respondent had acted reasonably in treating the Claimant’s conduct as a sufficient reason for dismissal. It was essential to the fairness of the decision that the dismissing officer should have been informed about, and taken into account, the withdrawal of the police complaint.

However, despite substituting a finding of unfair dismissal, the EAT remitted the case to the Tribunal to decide whether the dismissing officer would have made a different decision or whether the Claimant would have been dismissed anyway, had the dismissing officer known about the Claimant’s colleague withdrawing their police complaint. This is referred to as a Polkey deduction, which is where a Tribunal decides that if a fair procedure had been followed, how likely it would have been that the same outcome would have been reached. Any compensatory award received by the Claimant may then be subject to a deduction.

Comment

Employers should take note of this case, as it is yet another recent example of a scenario where the individual making the decision to dismiss an employee does not have all of the relevant information and their employer bears the risk that the dismissal is unfair as a result. The Supreme Court case of Royal Mail v Jhuti, which Paul McGowan covered in an update here, set out principles which may have a wide-ranging impact on future tribunal decisions. This case is a good example of how the principles from Jhuti will be applied by a Tribunal and how employers may be exposed to more areas of risk in relation to dismissing employees.

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