Knowledge of investigating officer relevant to fair dismissal
The Employment Appeal Tribunal (EAT) has held in Uddin v London Borough of Ealing that the dismissal of an employee for alleged sexual misconduct was unfair because the investigating officer did not inform the dismissing officer that the alleged victim had withdrawn her police complaint about the incident.
Mr Uddin, a 43-year-old man, had worked for the Borough since 2012, and SR, a 26-year-old female student, worked there on a three-month placement. Mr Uddin was dismissed for gross misconduct following an incident at a pub after work where both he and SR were drunk. CCTV showed that SR and Mr Uddin had been sitting side-by-side and acting affectionately towards each other. They then went into the disabled toilet and emerged after about a minute, when two colleagues followed them and banged on the door. SR later alleged that she had been dragged to the toilet by Mr Uddin who had locked her in and assaulted her. Mr Uddin denied this, but did not have a clear memory of what had occurred.
An investigation was conducted on behalf of the employer and concluded that there was a case to answer. During the course of the investigation the investigating officer urged SR to go to the police. She did so, but then decided to withdraw her allegations once a police officer had viewed the CCTV and identified some inconsistencies and discrepancies in her account. She signed a short withdrawal statement saying that she did not remember being sexually assaulted. At the disciplinary hearing the disciplining officer took into account that SR had been to the police and considered that fact supported her version of events. The investigating officer had not passed on that SR had subsequently withdrawn the police complaint.
The EAT concluded that the investigating officer's involvement in the dismissal process did not end with the presentation of his investigation report and recommendations. It applied the reasoning in Royal Mail Ltd v Jhuti (where the Supreme Court held that a decision made on manipulated facts will be attributable to the employer and not to the decision-maker). The EAT held that the fact that the investigating officer knew that SR had withdrawn her allegations, and that the disciplining officer took her decision in ignorance of it, was something that the tribunal should have considered when looking at the reasonableness of the decision to dismiss. It followed that, if the tribunal had approached the issue correctly, it would have been bound to conclude that the dismissal was unfair.
Take note: Following the decision in Uddin employers will need to ensure that all those involved in the disciplinary process provide full information and, if that information changes, ensure that it is up-to-date. HR may need to ensure changes or new information affecting the investigation are included in the disciplinary pack.