For an employment tribunal to conclude that a dismissal is fair they need to be satisfied that, firstly, the reason for it is one of the five potentially fair reasons set out in the Employment Rights Act 1996. If that is established the tribunal then needs to be satisfied that the employer has acted reasonably in dismissing for that reason and has followed a fair procedure. When establishing the reason for dismissal it is only in exceptional circumstances that an employment tribunal will look at the knowledge of someone other than the person tasked with taking the decision to dismiss. In the case of Uddin v London Borough of Ealing the EAT considered whether the knowledge of someone other than the decision maker could be relevant to the fairness of the dismissal.
Mr Uddin had been dismissed for misconduct following a colleague alleging inappropriate sexual behaviour towards her in a bar. The colleague had made a complaint to the police, but this had been withdrawn prior to the disciplinary hearing which led to Mr Uddin's dismissal. Although the investigating officer knew of the withdrawal of the police complaint, this information was not passed on to the decision maker who took the complaint into account when deciding to dismiss. Mr Uddin was subsequently unsuccessful in claims of unfair and wrongful dismissal and sex and age discrimination before the employment tribunal. With regard to the unfair dismissal claim the employment tribunal had concluded that the failure to inform the dismissing officer of the withdrawal was irrelevant as she could have, in any event, dismissed fairly even if a police complaint had never been made. Mr Uddin appealed to the EAT.
The EAT upheld the appeal in so far as it related to unfair dismissal. Given that the dismissing officer's evidence before the tribunal had been that, had she been told the police complaint had been withdrawn, she would have wanted to know why, the employment tribunal had erred in its approach. A situation where a complaint had been made to the police and then withdrawn could not automatically be equated with one where no complaint had been made at all. Given the dismissing officer's evidence that she would have wanted to know the reasons for the withdrawal the employment tribunal could not be sure that she would have regarded the two situations as equivalent. The failure of the investigating officer to pass on the information rendered the dismissal unfair.
This case emphasises the importance of accurate and up to date information being available to the decision maker prior to taking a decision to dismiss. Where that responsibility lies does not really matter. Even if there is a relatively short period of time between an investigation completing and a disciplinary hearing taking place relevant circumstances can change. It does seem odd that an investigating officer would not think to update a dismissing officer of something as important as the withdrawal of a police complaint in advance of a disciplinary hearing but equally a dismissing officer or appeals officer should also satisfy themselves that the information that they have is current.
