EAT judgment highlights need for employers to share relevant information

The EAT said knowledge held by a manager other than the dismissing officer can be attributed to the employer as a whole.

Employment law expert Anne Sammon of Pinsent Masons, the law firm behind Out-Law, said the case highlighted the need for those involved in disciplinary procedures to properly understand their remit.

“Many investigators will consider that their role is concluded as soon as they have finalised their investigation report. This case highlights that investigators need to ensure that, even where information comes to light after they have concluded their report, this information is communicated to the decision maker. A failure to do so is likely to result in any disciplinary sanction applied by the decision maker being unfair and subject to the risk of legal challenge,” Sammon said.

The appeal was brought by a council worker at the London Borough of Ealing, a Mr J Uddin. He was dismissed for alleged sexual misconduct following an incident in a pub after work, when a student on a work placement alleged that she had been assaulted by him.

The allegations were investigated and the complainant encouraged to go to the police, but after a police officer identified inconsistencies and discrepancies in her account, she withdrew the allegations.

Uddin was dismissed after a disciplinary hearing, but it later emerged that the disciplinary officer did not know that the complaint had been withdrawn.

Uddin lodged a claim for unfair dismissal, which was rejected by the Employment Tribunal. The tribunal concluded that Ealing had had reasonable grounds for firing Uddin, and that the disciplinary officer had had all the evidence she needed to make the decision she did.

At the EAT, Uddin contended that a November 2019 judgment by the UK Supreme Court meant that the investigating officer’s knowledge of the complaint’s withdrawal should have been attributed to the council as his employer.

EAT Judge Auerbach agreed, saying the “high investigative standard” dictated by fairness in such cases meant that the disciplinary officer should have taken the withdrawal of the complaint into account. As a result, the judge said if the tribunal had approached the issue correctly, it would have found that the dismissal was unfair.

The case will now go back to the Employment Tribunal to be reconsidered.