Overview: Employer’s failure to update disciplinary manager made dismissal unfair
The facts: The EAT has recently an earlier employment tribunal decision which held that an employee who had been accused of sexually assaulting a work-placement student was unfairly dismissed.
The investigating officer in this case had encouraged the student to make a complaint to the police regarding the alleged sexual assault and later relied on that a compliant to the police had been made when recommending disciplinary proceedings for gross misconduct. However, before the disciplinary hearing took place, the student withdrew her police complaint. The investigating officer became aware of the student’s decision to withdraw her complaint but decided against sharing this information with the manager tasked with conducting the disciplinary hearing. The employee accused of inappropriate workplace was subsequently dismissed. His appeal against his dismissal was also unsuccessful.
Outcome: In the earlier case of Royal Mail Group v Jhuti  UKSC 55, the Supreme Court the interesting question of whether a tribunal can impute to an employer a reason for dismissal which is different from the reason that had genuinely been in the mind of the person who took the decision to dismiss. The EAT noted that the strict ratio of Jhuti did not apply in this case. However, it found that:
- The knowledge or conduct of a person other than the person who actually decided to dismiss can be relevant to the fairness of a dismissal, both in relation to the tribunal’s consideration of the reason for dismissal under section 98(1) and its consideration of fairness under section 98(4) of the ERA 1996.
- Where someone responsible for the conduct of a pre-investigation fails to share a material fact with the decision-maker, that could be regarded as relevant to the tribunal’s decision in relation to fairness under section 98(4) of the ERA 1996.
Adopting the reasoning set out above, the EAT held that the tribunal should have concluded, at the liability stage, that fairness demanded that the dismissing manager should have been informed of, and taken into account, the fact that the police complaint had been withdrawn. This was a relevant and material fact that had not been disclosed. The EAT went on to state that as this had not happened, the tribunal should have held that the dismissal was unfair.
Our comments: This case serves as a useful reminder to anyone who is involved in the investigation of disciplinary offences that they must not ignore relevant information. Investigating officers have an ongoing duty to disclose relevant information whenever that information comes into their possession. Similarly, disciplinary managers should not decide to discount relevant information simply because that information was not available to the investigating officer at the time that their investigation was being carried out.
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