A dismissal for alleged sexual assault was unfair because the investigating officer failed to tell the decision maker that the complainant had withdrawn her complaint to the police.
Mr Uddin worked for the London Borough of Ealing. He was accused of sexual assault against a younger female colleague (known as “SR”) after a night in the pub where they had both been drinking. SR said that Mr Uddin had dragged her into a toilet, locked her in and assaulted her, leaving bruising on her breasts. Mr Uddin said that he had suffered alcohol related memory loss, but denied her allegations.
Mr Jenkins investigated the allegations on behalf of the Borough. He encouraged SR to make a complaint to the police. She did so. After a thorough investigation (which Mr Uddin later said had been hostile and based on an assumption that he was guilty), Mr Jenkins decided that there was a disciplinary case to answer.
Before a disciplinary decision had been made, SR decided to withdraw her complaint to the police, saying that she “didn’t realise it would be so griefy” and that she had been pressurised by Mr Jenkins and/or the Borough. She signed a short withdrawal statement saying that she did not remember being sexually assaulted. Mr Jenkins was aware that she had withdrawn her police complaint, but he did not tell the disciplinary decision maker, Ms Fair. In the absence of this information, Ms Fair decided that the allegations against Mr Uddin should be upheld and that he should be dismissed for gross misconduct.
Mr Uddin complained (among other things) that he had been unfairly dismissed. The employment tribunal rejected his claim. The majority of the tribunal considered that the Borough had reasonable grounds for accepting SR’s version of events and that Mr Uddin had committed gross misconduct. Contributing to this decision was the majority belief that, although Ms Fair had relied on SR’s complaint to the police as a reason for believing her version of events, Ms Fair had already established sufficient evidence for her conclusions, and this added little weight.
Mr Uddin appealed to the EAT. The Supreme Court (in the recent case of Jhuti) has recently considered whether, and if so, in what circumstances in an unfair dismissal claim, an employment tribunal can impute to the employer a reason for dismissal, which was different from the reason that had been in the mind of the person who took a decision to dismiss in good faith. While Jhuti related to the reason for the dismissal rather than whether the decision to dismiss was reasonable under all the circumstances (which was the issue in Mr Uddin’s case), the EAT considered that the Supreme Court’s assessment was relevant to Mr Uddin’s case and that the knowledge or conduct of someone who is not the decision maker – here, the investigating officer – can be relevant in assessing whether the decision to dismiss was reasonable.
In view of this, the EAT considered that, had the employment tribunal properly considered the issue, it would have been bound to have held that the dismissal was unfair. In particular, this took into account that:
- The dismissal would potentially end Mr Uddin’s career and the standard of investigation required was therefore high;
- An employment tribunal should look at the fairness of the “end to end” process in deciding whether a decision to dismiss is reasonable;
- The “investigation” did not end with Mr Jenkins’ presentation of his investigation report at the disciplinary hearing, but included the information of which he later (but before the decision to dismiss) became aware about SR’s withdrawal of her complaint to the police;
- Ms Fair’s evidence in the employment tribunal was that, had she known about the withdrawal of the complaint to the police, she would have wanted to know the reasons for this; and
- Ms Fair made her decision in ignorance of facts known to Mr Jenkins at that time and this should have been taken into account by the employment tribunal.
The consideration of whether or not Ms Fair would in fact have decided to dismiss Mr Uddin had she known about the withdrawal of the complaint to the police must, the EAT said, be considered at the remedy stage.
WHAT DOES THIS MEAN FOR EMPLOYERS?
A fair investigation is essential if employers are to avoid successful claims of unfair dismissal. Points highlighted in this case are that:
- The standard of the investigation will be particularly high where a dismissal is potentially career ending.
- An investigator must not start from a presumption of guilt, and should make sure that their questions reflect that they have an open mind. Hostile questioning will not always result in an unfair dismissal, but it can suggest a presumption of guilt.
- Investigators must be careful in the words they use in the course of their investigation. Mr Jenkins referred to SR as a “victim”. The employment tribunal accepted this in the light of the fact that Mr Jenkins used to be a police officer, but using words like this may, again, suggest a presumption of guilt.
- Investigators should be careful not to allow their preconceptions to influence the investigation and their findings should be based on fact.
- Investigators must look for exculpatory evidence as well as evidence of proof of guilt.
- An “investigation” is not just the formal investigation, and does not end with the investigation report, but consists of all gathering of information up to the time when the decision is made.
- All evidence potentially relevant to a decision should be provided to the decision maker.