An employer was not vicariously liable for the actions of one of its employees who, to damage...
Attribution of knowledge: relevance to fairness of dismissal
Uddin v London Borough of Ealing
In an unfair dismissal case, an investigator’s failure to share a material fact with the dismissing officer could be relevant when assessing whether the employer had acted reasonably in dismissing.
In unfair dismissal, it’s for the employer to show the reason for dismissal and that this reason was a potentially fair reason to dismiss (ERA 1996, s. 98(1)). Generally, it’s the decision maker’s knowledge which is the relevant consideration. However, in Royal Mail Ltd v Jhuti, the Supreme Court held that where the reason has been hidden from the decision maker different considerations apply. In particular, if a person in the hierarchy of responsibility above the employee determines that the employee should be dismissed for one reason but hides it behind an invented reason which the decision maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason. The decision below considers whether this attribution of knowledge test also applies to the actual fairness of the dismissal (ERA 1996. s. 98(4)).
Mr Uddin was dismissed for gross misconduct –inappropriate sexual behaviour towards an intern at after-work drinks at a pub. After the investigation but before the disciplinary hearing, the investigating officer learned that an allegation of sexual assault made about the incident to the police had been withdrawn. He did not tell the dismissing officer about this and therefore the decision to dismiss was made without the dismissing officer taking account of that piece of information. The dismissing manager relied in part on the fact of the complaint to the police in preferring the complainant’s account of events. Mr Uddin brought various tribunal complaints, among them one of unfair dismissal. A tribunal held that the dismissal was fair and Mr Uddin appealed.
The appeal was allowed in relation to the unfair dismissal point.
There was no suggestion here that the investigating officer had a different reason for acting from the dismissing officer and so there wasn’t any need (along the Jhuti lines) to impute to the employer a reason for dismissal different from that which influenced the decision maker (i.e. this wasn’t a case where the reason for dismissal had been manipulated). However the EAT said that the principles in Jhuti extended more widely: the Supreme Court had established that the knowledge or conduct of a person other than the person who actually decided to dismiss could be relevant both in relation to consideration of the reason for dismissal (as in Jhuti) and/or its consideration of the reasonableness of the decision to dismiss for the given reason (as in Mr Uddin’s case). The investigating officer’s failure to share a material fact with the dismissing officer could be relevant to the consideration of whether the dismissal was fair.
Here the dismissing officer knew there had been a police complaint and had attached some weight to that fact in deciding to dismiss. She had also stated that had she known of the withdrawal of the complaint she would have wanted to understand the reason for it. She had made a decision on behalf of her employer without the benefit of clearly relevant knowledge which the employer had in its possession.
The EAT held that if the tribunal had approached this issue correctly, it was bound to conclude that Mr Uddin’s dismissal was unfair.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0165_19_13023.html
This case emphasises the importance of ensuring that a dismissing officer is always in possession of all of the facts before making a decision, otherwise a company risks turning a fair dismissal into an unfair one.