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The Supreme Court decided last year that knowledge of a manager other than the dismissing officer can be attributed to the employer when establishing the reason for the dismissal (Royal Mail v Jhuti – where the real reason for dismissal, whistleblowing, was hidden from the dismissing officer). The EAT has now looked at whether the knowledge of another manager can be attributed to the employer in deciding whether they acted reasonably in dismissing an employee.

In Uddin v London Borough of Ealing, the employee was dismissed in relation to an allegation of inappropriate sexual behaviour towards a work placement student in a bar. The employee had reported the matter to the police but subsequently withdrawn her complaint. The investigating officer knew that the complaint had been withdrawn but did not tell the dismissing officer about this. Did that take the decision to dismiss outside the range of reasonable responses open to the employer?

The employment tribunal said the dismissal had been fair because the employee could have been fairly dismissed anyway even without the police complaint. The EAT disagreed. The dismissing officer took the police complaint into account. She said that she would have asked more questions had she known the complaint had been withdrawn. The knowledge of the investigating officer was relevant and hidden from the dismissing officer. This made the dismissal unfair. The EAT pointed out that the question of what would have happened had the dismissing officer known about the withdrawal of the police complaint will be relevant to compensation. If the employee would have been dismissed anyway, compensation can potentially be reduced to zero. The original employment tribunal will decide what level of compensation is due.

It doesn’t really matter to employers which part of the legal test is affected when a dismissing officer isn’t given all the relevant information by an investigating officer. The important point is that it matters, both in relation to the reason for dismissal that a tribunal must establish, and the fairness of a dismissal overall. Employers should ensure that all relevant information is given to dismissing officers. This includes facts which come to light after the investigation has apparently finished, if a disciplinary or appeal hearing remains outstanding.

Find out how we can help.  Our partner, Jon Dunkley, heads the Wollens specialist Employment Department.  Contact him today for an informal chat, without obligation on 01271 342268 or via email at jon.dunkley@wollens.co.uk.

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