In the recent case of Uddin v London Borough of Ealing, the Employment Appeal Tribunal (EAT) provided guidance on cases where the conduct of the investigator, unbeknown to the dismissing manager, has a bearing on the fairness of a dismissal.

Facts

Mr Uddin was a senior manager with the Borough. The allegations that led to his dismissal were of inappropriate behaviour towards a younger female colleague during the course of a Friday night visit to a pub.

There was a formal internal investigation which concluded that there was a disciplinary case to answer against Mr Uddin.

Shortly after the internal investigation concluded, the complainant reported the incident to the police, after being encouraged to do so by the investigator. The police noted some inconsistencies in the complainant’s account, and when these were discussed with her, she indicated that she wished to withdraw her complaint. She then submitted a short, signed, withdrawal statement to the police stating that she did not recall being sexually assaulted. The police decided to take no further action against Mr Uddin on the basis that the complainant’s account did not reflect what the CCTV showed, that Mr Uddin’s account was consistent with the CCTV, and that action against him was not in the public interest. 

Prior to the disciplinary hearing, the investigator was made aware that the complainant had withdrawn her police complaint against Mr Uddin and of the reasons why the police had decided to take no further action against him. However, the investigator did not advise the chair of the disciplinary hearing of this fact before she upheld the complaint against Mr Uddin and dismissed him for gross misconduct.

The Tribunal hearing the claim of unfair dismissal found that the fact that the decision maker was unaware of the withdrawal/outcome of the police complaint did not mean that Mr Uddin’s dismissal was unfair.

Mr Uddin appealed this finding to the EAT.

EAT decision

The EAT disagreed with the ET and upheld Mr Uddin’s appeal, finding that his dismissal was unfair.

The EAT concluded that the 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 a dismissal.

In Mr Uddin’s case, the EAT concluded that the decision maker had been aware of the complaint to the police and had attached some weight to it. In those circumstances, the EAT found that had the dismissing manager known about the withdrawal of the police complaint and the police’s conclusions, it would have impacted on her own decision. The EAT therefore found that the dismissing manager should have been informed and the failure to inform her meant that the dismissal was unfair.

What to take away

This case confirms that the conduct and knowledge of a disciplinary investigator (particularly if, by any act or omission, they withhold relevant information from the decision maker) can affect whether or not a dismissal is fair.

It acts as a reminder that the role of the investigator and obligations of fairness and impartiality on them do not end at the date the report is finalised, but continue throughout the entire process.

For further information on how this issue might affect your organisation, please contact Sian Bond, Chloe Edwards or Andrew Uttley.