What investigating officer knows or does can be attributed to dismissing manager, rendering dismissal unfair

Uddin v London Borough of Ealing UKEAT/0165/19

Why care

The Supreme Court in Jhuti (a whistleblowing case) established that a manager's manipulation of the facts, when presenting them to the dismissing manager, can be attributed to the dismissing manager. So in that case the true reason for dismissal was found to be whistleblowing, even though the dismissing manager was ignorant of this. That case hinted that this principle, of attributed knowledge, could also be extended more widely to the question of the reasonableness of the dismissal. Although a Court of Appeal case in 2011, Orr v Milton Keynes, did not support such an approach, the EAT has now endorsed the comments made in Jhuti that the principle of attributed knowledge potentially extends more widely to the reasonableness of the dismissal. This means that employers may well have to concern themselves with the reliability or otherwise of the investigating officer and others in the process; dismissing managers cannot be complacent about what is hidden from view. Decisions by dismissing managers, even when taken in ignorance and through no fault of their own, can result in findings of unfair dismissal.

The case

In Uddin v London Borough of Ealing an employee was dismissed for gross misconduct when it was alleged he sexually assaulted a colleague in a disabled toilet at an after work drink. Both the complainant and alleged perpetrator had been drunk, with CCTV footage in the bar showing them touching each other affectionately before they went to the toilet.

The woman concerned (a student on a work placement) complained to the police, at the suggestion of the Borough. The investigating officer conducted a rigorous investigation which suggested that the employee was guilty of sexual assault. The dismissing manager agreed with the findings in the report and attached weight to the fact that the female employee had decided to file a police complaint. The investigating officer failed to tell the dismissing manager, before she made her decision, that the woman had later withdrawn the complaint.

While an employment tribunal found the dismissal to be fair, the EAT disagreed. The fact that the investigating officer had not shared a material piece of evidence affected the fairness of the dismissal. The knowledge and conduct of the investigating officer, as per the obiter comments in Jhuti, could be attributed to the dismissing manager.

What to take away

Those taking decisions to dismiss have always needed to adopt a rigorous approach to the evidence they are presented with. However, this case suggests those charged with making such decisions face the additional burden of taking account of hidden dangers. Because the knowledge of others in the process may be attributed to a dismissing manager, organisations should reappraise how the investigatory process works. Does it rely too heavily on the views of one individual? This could be a problem. Are there mechanisms in place to allow for an objective and holistic assessment of the facts before a decision is taken? For example, it should be part of the process to ask, have there been any further developments since the investigation report was presented? Those involved in the investigation could be asked to confirm that there is nothing misleading about their account. Such measures might provide some comfort but would not be a complete answer.

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