In Uddin v London Borough of Ealing UKEAT/0165/19, the EAT decided that an employee had been unfairly dismissed when the investigating officer failed to inform the dismissing manager that the alleged victim of a sexual assault by the employee had withdrawn her complaint to the police.
The dismissal of an employee for a reason which “relates to the conduct of the employee” is potentially fair (section 98(2)(b), Employment Rights Act 1996 (ERA 1996)).
The starting point for determining whether a dismissal is fair is the test set out in section 98(4) of ERA 1996 which provides that:
”The determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer):
depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
shall be determined in accordance with equity and the substantial merits of the case.”
Case law has established principles of fairness in relation to conduct dismissals. In particular, a dismissal for misconduct will only be fair if, at the time of dismissal:
• The employer believed the employee to be guilty of misconduct.
• The employer had reasonable grounds for believing that the employee was guilty of that misconduct.
• At the time it held that belief, it had carried out as much investigation as was reasonable.
(British Home Stores Ltd v Burchell  IRLR 379.)
In A v B  IRLR 405, the EAT stated that the employer’s investigation should be particularly rigorous and even-handed when the charges are particularly serious, or if the effect on the employee would be far-reaching, for example, if it would impact on their reputation or future employment prospects.
In Royal Mail Group v Jhuti  UKSC 55, the Supreme Court held that ordinarily, when identifying the reason for a dismissal, courts need generally look no further than the reasons given by the appointed decision-maker. However, where the real reason for the dismissal is hidden from the decision-maker behind an invented reason, it is the court’s duty to look behind the invention. In Jhuti, where a manager in the hierarchy of responsibility above an employee decided that the employee should be dismissed because of protected disclosures, but hid this reason behind allegations of poor performance which were adopted in good faith by the decision-maker, the real reason for the dismissal was the protected disclosures.
In the case reported below, the EAT considered the impact of withholding information from the manager conducting a disciplinary hearing, that a complainant had withdrawn a police complaint, had on the fairness of an employee’s dismissal.
The EAT (His Honour Judge Auerbach, sitting alone) allowed the appeal and substituted a finding that the dismissal was unfair.
The EAT observed that:
• Burchell and other authorities established that a tribunal must consider whether there has been a reasonably sufficient investigation, and a reasonable view formed, at the point when the decision to dismiss was taken (and, where applicable, when an appeal was decided). The notion of “investigation” in this context is not confined to any formal pre-investigation in the case but applies to the overall process of gathering and examining evidence, up to the point where the decision is taken, including the disciplinary hearing itself.
• While the questions posed by Burchell are basic and important, they are not exhaustive of the considerations that may have a bearing on the fairness of a conduct dismissal, whether procedural or otherwise. It is not necessary to attempt to shoehorn a critique of the fairness of a conduct dismissal into a stage of the Burchell process. Tribunals should always apply section 98(4) of the ERA 1996 to the particular facts of the case.
Given its observations, the EAT held that it was insufficient to say that Mr Jenkins had completed and delivered his investigation report and recommendation before the alleged victim withdrew her complaint to the police. Mr Jenkins learnt that she had done so before the disciplinary hearing took place but did not share this information with Ms Fair (or with Mr Uddin or his representative). The question for the tribunal was whether those circumstances affected the reasonableness of the decision to dismiss Mr Uddin for his conduct.
The EAT’s decision emphasises the need for employers to ensure that those involved from the beginning to the end of a disciplinary process ensure that the information that they provide (to those involved dealing with the disciplinary process for the employer and to the employee and their representatives) is and remains accurate. If they do not do so already, employers may consider it appropriate to ensure policies and instructions to managers make this clear.
Uddin v London Borough of Ealing UKEAT/0165/19 (13 February 2020) (HHJ Auerbach).