Need to ensure free flow of information during an investigation reinforced by the Employment Appeal Tribunal

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27 February, 2020

The Employment Appeal Tribunal ("EAT") recently utilised the findings in the Jhuti case to uphold a claim for unfair dismissal. In Jhuti, the Supreme Court found that where there is a hidden reason for a dismissal it will be held to be the reason for the dismissal irrespective of the fact that the decision maker had an alternative admissible reason in mind. Accordingly, the dismissal will be automatically unfair even though the decision maker has acted in good faith. In that instance, there was an element of deliberate manipulation of the information made available to the investigating officer, which was not the case in the matter put before the EAT in this instance. However, the EAT still applied the reasoning of the Supreme Court in Uddin v. London Borough of Ealing. The matter concerned an employee dismissed for alleged sexual misconduct. The Claimant, a 43 year-old man, had been accused of sexual misconduct in relation to a 26 year-old female student who was on a three-month placement. The alleged incident took place on a night out at a pub when both parties were drunk and had been sitting next to each other, 'acting affectionately' towards each other. They were then seen going into a disabled toilet together. Colleagues followed them to bang on the door and they emerged a minute later. The female student later alleged that the claimant had dragged her into the toilet, locked the door, and assaulted her, leaving her with extensive bruising on her chest. Although he didn't have a clear recollection of events, the Claimant denied assaulting the student.

The employer carried out an investigation into the incident and a disciplinary hearing was conducted. During the hearing, the Investigating Officer urged the student to report the incident to the police. As part of their investigation, the police reviewed CCTV from that evening and identified a number of inconsistencies between the footage and the student's recollection of events. This resulted in the student withdrawing her allegations and police involvement ended. Following this, she signed a statement withdrawing her allegations and saying she did not remember being sexually assaulted.

The fact that the student had been to the police was considered to be a factor supporting her version of events and was taken into account by the deciding officer conducting the disciplinary as the officer had not been informed that the allegations had been withdrawn. The Claimant was dismissed for gross misconduct, and he brought a tribunal claim for unfair dismissal.

At first instance the claim was rejected as the tribunal accepted that the investigation was thorough, that the deciding officer understood the discrepancies and that the claimant had ample opportunity to challenge the allegations. Although the officer had relied on the fact the student had been to the police as evidence in support of her account, they had additional evidence sufficient to support their conclusions in any event.

The Claimant appealed the Tribunal's findings arguing that following the Supreme Court's findings in Jhuti the knowledge that the police allegations had been dropped should be attributed to the employer when deciding on dismissal. Although the facts differed slightly in each case as this was not an instance where the reasons for dismissal had been manipulated as in Jhuti, the EAT concluded that the principle in Jhuti went wider than the reason for dismissal. The Supreme Court in its finding essentially established the principle that the knowledge or conduct of a person other than the person who actually decides to dismiss could be relevant. As such, if a material fact is not shared with a decision maker, it may prove to be relevant to a tribunal adjudication. In this case, the investigating officer had been aware that the allegations had been withdrawn. His involvement in the process did not end with the presentation of his report and recommendations and so the knowledge was attributable to the employer. And the fact that the officer conducting the disciplinary hearing took the decision to dismiss in ignorance of the fact the allegations were withdrawn was relevant to tribunal considerations. The EAT held that the tribunal erred in finding that the officer had sufficient reasons to dismiss irrespective of the police allegations, and that making allegations to the police and subsequently withdrawing them should not be equated to not making a complaint at all. The EAT held that the dismissal was unfair.

But what does this mean for employers? Essentially, it stresses the need to ensure the free flow of information when conducting an investigation and/or hearing relating to a potential dismissal. All individuals involved in conducting investigations need to understand that although their apparent involvement in the process may have ended when their specific role has been fulfilled, the need to be continually engaged in the flow of information has not. As such, all members of staff who could potentially be required to participate in investigations should be fully trained in the process and responsibilities of conducting investigations. Policies and procedures should be updated to stress the need to ensure the free flow of information. All staff members should be aware of the need to ensure any relevant information is passed on to an appropriate member of staff. By ensuring that decision makers are kept up to date with all relevant information, it is easier to establish should a tribunal claim occur that the decision was made with a view to all relevant issues and hopefully reduce exposure to potential findings that dismissals are automatically unfair.

For more information contact Rosalind Leahy in our Employment & HR department via email or phone on 01772 220185. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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