Fair procedure and dismissal

All qualifying employees (those with 2 years of service) have the statutory right not to be unfairly dismissed.  Whilst dismissal for a reason which relates to the employee’s conduct is potentially a fair reason, the procedure leading to the dismissal must also be fair.

A tribunal will always consider whether there has been a reasonably sufficient investigation, and a reasonable view formed by the employer at the point when the decision to dismiss was taken.  In addition, if the charges are particularly serious, the employer’s investigation should match that level of seriousness.

In a recent case the Employment Appeal Tribunal (EAT) held that an employee had been unfairly dismissed when the investigating officer failed to share a material fact with the dismissing officer.

The case concerned Mr Uddin, a support worker employed by the London Borough of Ealing, who was dismissed for gross misconduct following an incident at a pub.  Mr Uddin allegedly sexually assaulted SR, a female student who was on a work placement.  The investigating officer concluded that there was a case to answer.  SR subsequently withdrew her allegations of sexual assault to the police because she “didn’t realise it would be so ‘griefy’” and she had felt pressured to contact the police by the Borough and investigating officer”.  The investigating officer failed to tell the dismissing officer that SR had withdrawn her police complaint.  The decision to dismiss was therefore taken without considering that piece of information.  As a result Mr Uddin claimed unfair dismissal.

Whilst the Employment Tribunal dismissed Mr Uddin’s claim, the EAT overturned the decision and upheld his unfair dismissal claim.  Given the gravity of the allegations Mr Uddin was facing, the employer had a heightened duty of proactive investigation.  The investigating officer’s failure to provide accurate and up-to-date information undermined the dismissing officer’s ability to consider the true position.  The dismissing officer had taken into account hat SR had made a complaint to the police as being a factor in support of her allegations, had she known about the withdrawal this could have impacted her decision to dismiss.  The EAT concluded that the knowledge or conduct of another person (other than the ultimate decision maker) could still be relevant in determining whether the decision to dismiss was fair.

For employers, this decision means they must ensure that there are no procedural defects in the investigation process and that decisions are based on all the information available to the company.  If these steps are not taken, employers may expose themselves to unfair dismissal claims.