Yes. In the case of Uddin v London Borough of Ealing, the Employment Appeal Tribunal (EAT) held that the failure of the investigating officer to provide up-to-date information undermined the fairness of the decision.

At the disciplinary hearing, the decision maker was not able to consider the true and accurate position in relation to the allegations.

The Investigation

An allegation of inappropriate sexual behaviour was made against Mr Uddin in November 2016. His employer investigated the allegation. The investigating officer concluded that there was a case to answer for gross misconduct and issued a report to the disciplinary hearing officer.

During the investigation, the investigating officer had encouraged the complainant to make a complaint to the police. The fact that she had raised the complaint with the police was included in the investigation report. However, before the disciplinary hearing took place, the complainant withdrew her police complaint and the police investigation did not proceed. The investigating officer was made aware of this change in circumstances, but did not share this information with the manager conducting the disciplinary hearing. The disciplinary hearing officer decided to dismiss the employee at the hearing.

The employment tribunal found in the employer's favour, concluding that the disciplinary officer had sufficient evidence available to them to reasonably conclude the employee was guilty of gross misconduct and to dismiss.

The EAT Decision

The EAT held that the tribunal should have concluded that fairness required that the decision maker at the disciplinary hearing should have been informed of, and taken into account, the fact that the police complaint had been withdrawn at the disciplinary hearing. The failure to take this point into consideration determined that the dismissal was unfair.

Best Practice

A dismissal for gross misconduct will only be fair if, at the time of dismissal, the employer had reasonable grounds for believing that the employee was guilty of that misconduct and that, at the time it held that belief, it had carried out as much investigation as was reasonable. A decision made at the disciplinary stage may not be fair if information is withheld, as in this case. Investigators should make sure that the decision makers at the disciplinary stage have all of the relevant evidence available to them, including evidence that has only come to light after the investigation report has been completed but before the disciplinary hearing has taken place.