Do the principles set down by the Supreme Court decision in the landmark decision in Royal Mail Group Ltd v Jhuti (in which Simon Gorton QC and Jack Mitchell acted for the Royal Mail) apply to the assessment of whether an employer acted reasonably in dismissing an employee for the purposes of s.98(4) Employment Rights Act 1996?
Yes, according to the EAT in Uddin v London Borough of Ealing, in which Betsan Criddle acted for the London Borough of Ealing.
Mr Uddin had been dismissed for alleged inappropriate sexual behaviour towards an intern at after work drinks at a pub. After the conclusion of the investigation but before the disciplinary hearing, the investigating officer learned that an allegation of sexual assault made about the incident to the police had been withdrawn. He did not tell the dismissing officer about this and therefore the decision to dismiss was made without the dismissal officer taking account of that piece of information. The dismissing manager relied in part on the fact of the complaint to the police in preferring the complainant’s account of events.
The majority of the ET concluded that this did not affect the fairness of the dismissal, because there was sufficient evidence before the dismissing manager to decide that Mr Uddin was guilty of misconduct even had the complaint to the police not been made.
The EAT held that the strict ratio of Jhuti did not apply, because there was no suggestion that the investigating officer had a different reason for acting from the dismissing officer. However, the principles in Jhuti extended more widely: the Supreme Court had established that the knowledge or conduct of a person other than the person who actually decided to dismiss could be relevant both in relation to consideration of the reason for dismissal (as in Jhuti) and/or its consideration of the reasonableness of the decision to dismiss for the given reason (as in Mr Uddin’s case). The investigating officer’s failure to share a material fact with the dismissing manager could be relevant to the consideration of whether the dismissal was fair.
Applying that approach to the facts of Mr Uddin’s case, the dismissing manager: (i) had been aware that there had been a police complaint and had attached some weight to that fact in reaching the decision to dismiss and; (ii) had stated in evidence that had she known about the withdrawal she would have wanted to understand the reason for it. In these circumstances, the EAT held that the ET erred in concluding that the dismissal was not unfair because the dismissing manager had made her decision without knowing that the police complaint had been withdrawn. The EAT therefore substituted a finding of unfair dismissal. The question of what the dismissing manager would have done had she known that fact was a Polkey question.
Betsan Criddle represented the London Borough of Ealing in the EAT instructed by Shahzad Ayub of London Borough of Ealing Legal Services.
This note was written by Camille Ibbotson.
