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A flawed disciplinary investigation will lead to a finding of unfair dismissal


Posted on: Mar 12,2020


In Uddin v London Borough of Ealing [2020] the investigator withheld information from the disciplinary panel, leading to a finding of unfair dismissal by the  Employment Appeal Tribunal (EAT).

Mr Uddin had worked for the London Borough of Ealing since 2012. Following a team night-out at a pub he was accused of sexual assault against a 25-year-old female intern (SR).  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 and denied the allegations.

Ian Jenkins, a former police officer and Head of the Youth Offending Service, was asked to investigate the allegations. He encouraged SR to complain to the police, which she did. Following the internal investigation, Mr Jenkins decided that Mr Uddin had a case to answer.

Before a disciplinary decision had been made, SR withdrew her police complaint because she had been presurissed to complain by Mr Jenkins and “didn’t realise it would be so griefy”. She signed a 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 Mr Jenkins was aware that she had withdrawn her police complaint, but he did not tell the disciplinary panel who decided that the allegations against Mr Uddin should be upheld and dismissed him for gross misconduct.

Mr Uddin sued for unfair dismissal (and other things) in the Employment Tribunal (ET). The ET did not uphold his claim on the grounds that the employer had reasonable grounds for accepting SR’s version of events and that gross misconduct was made out.

Mr Uddin appealed to the EAT who considered the case of  Royal Mail v Jhuti. In that case, the Supreme Court said that that the knowledge or conduct of someone who is not the decision maker can be relevant in assessing whether the decision to dismiss was fair.

While Jhuti was about the reason for dismissal, rather than the fairness of the dismissal, the EAT said that Jhuti was relevant to Mr Uddin’s case. This is because Mr Jenkins knew that SR had withdrawn her complaint to the police and should have informed the disciplinary panel. The Court said that if the ET had properly considered the issue, they would have found that the dismissal was unfair. The ET should have considered that:

  • The dismissal would potentially end Mr Uddin’s career, so the standard of investigation required here was very high.
  • An ET should look at the entirety of the disciplinary process from end to end, in deciding whether a decision to dismiss is fair.
  • The investigation did not end with Mr Jenkins’ presentation of his investigation report at the disciplinary hearing but included the information which he later became aware about SR’s withdrawal of her complaint to the police.

For these reasons, Mr Uddin’s dismissal was unfair. The moral of the story is ACAS Code 101. Salient points are as follows;

Predetermination

The case investigator must not presume that the person they are investigating is guilty. In this case, Mr Jenkins called SR a “victim” and was hostile towards Mr Uddin.

Standard of investigation

  • If the outcome of the investigation could lead to a career ending dismissal, then the standard of the investigation should be very high.
  • Investigation findings should be based on fact, and not the investigators pre-conceptions.
  • The investigator should look for evidence of innocence as well as evidence of guilt.
  • The investigation does not end with the investigation report, it also includes all information gathered until the disciplinary decision is made.

Evidence

All evidence potentially relevant to a decision should be provided to the decision maker.

12/03/2020

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