Investigation and Decision

February 17th, 2020 by James Goudie KC

Uddin v London Borough of Ealing, UKEAT/0165/19/RN, concerned the dismissal of the Claimant by reason of misconduct.   One of the issues arose from the fact that the complainant who alleged inappropriate sexual behaviour towards her by the Claimant had withdrawn a complaint to the police, but the Council’s manager, who took the decision to dismiss, who knew that the complaint had been made, was not told by the Council’s investigating officer that the complaint had been withdrawn.  The EAT held that the fact that the investigating officer, who did know the complaint had been withdrawn, did not pass this on to the disciplinary decision maker, rendered the dismissal unfair, applying Royal Mail v Jhuti (2019) UKSC 55, on the reason for the dismissal, to the reasonableness of the dismissal decision: see Judge Auerbach in the  Ealing case at paragraphs 71-78, concluding, with respect to Jhuti in the Supreme Court:-

“78. Drawing it all together, I conclude that Lord Wilson (and his fellow Justices) were of the view, first, 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, could arise, both in relation to the Tribunal’s consideration of the reason for dismissal under section 98(1) and/or its consideration of the section 98(4) question; and that, in a case where someone responsible for the conduct of a pre-investigation did not share a material fact with the decision-maker, that could be regarded as relevant to the Tribunal’s adjudication of the section 98(4) question.  Though these passages were, strictly, obiter, they draw also on the reflections of Underhill LJ in the earlier authorities there mentioned (see, further, Underhill LJ’s concluding remarks at paragraph 62 of his own speech in Jhuti).  I, respectfully, agree with them.”

As to outcome, Judge Auerbach said:-

“103. … The Employment Tribunal erred in concluding that the fact that Ms Fair took her decision in ignorance of the fact that SR had withdrawn her police complaint, when this was known to Mr Jenkins, did not render the dismissal unfair.  For reasons I have explained, had it approached this aspect correctly, the Tribunal would have been bound to conclude, on the facts found, that the dismissal was, on this account, unfair.

104. Accordingly, … I will substitute a decision that the dismissal was (on this account) unfair. However, it will be for the Tribunal, and not me, now to consider, and decide, whether it thinks that, had Ms Fair been made aware that SR had withdrawn her police complaint, she, Ms Fair, then would, or might (with some degree of percentage chance), have made a different decision; and, depending on its answer to that question, the impact on its remedy decision. I cannot say either that there is only one answer to that question which the Tribunal could correctly give, nor any particular answer that it would necessarily be wrong to give. Nor can I go so far as to say that there is only one proper outcome possible on the question of contributory conduct.”

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