Last week I concluded my series on the Supreme Court’s decision in Jhuti. In the last post I raised a question of whether Jhuti applied if a person in the hierarchy of responsibility had knowledge which the dismissing manager did not have that did not change the reason for dismissal but was a factor that could make dismissal unreasonable. Could a dismissal in this situation be unfair, even though the dismissing manager was unaware of it?
I did not expect clarification to come through quite so quickly but three days after my post the EAT’s decision in Uddin v London Borough of Ealing (2020) was issued which finds that knowledge held by an employer within the hierarchy of responsibility even if not relating to the reason for dismissal could be attributed to the decision maker. The relevant section of the decision reads:
The present case is not one in which the reason for dismissal was found to have been invented, or in which [the investigating officer] had a different true reason from the reason why [the dismissing officer] in fact dismissed, or the basis on which the appeal panel upheld the dismissal…[but] I conclude that Lord Wilson [in Jhuti was] of the view…that the question of whether the knowledge…of a person other than the person who actually decided to dismiss, could be relevant to the fairness of a dismissal, could arise, both in relation to the Tribunal’s consideration of the reason for dismissal under section 98(1) and/or its consideration of the section 98(4) question… where someone responsible for the conduct of a pre-investigation did not share a material fact with the decision-maker, that could be regarded as relevant to the Tribunal’s adjudication of the section 98(4) question.
The circumstances of the case were that the employee was dismissed for alleged sexual harassment and along with the disciplinary investigation the employer was aware the victim had raised a complaint with the police of criminal conduct. However, investigating officer for the employer was aware that the police case had been dropped and that the complainant had retracted her statement. He did not share this information with the decision maker who therefore proceeded on the basis that there was still a criminal prosecution possible. In the EAT it was determined that this knowledge was attributed to the employer and therefore there was a question as to whether the dismissal was unreasonable since the evidence of the dismissing manager herself was that she would liked to have had more information about this had she known of this before taking a decision.
Uddin is therefore a helpful case that clarifies that knowledge can be attributed to a decision maker and this can be relevant to the fairness of dismissal and that the effect of Jhuti extends beyond just establishing the reason for dismissal.
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