Employee Accused Of Sexual Assault Was Unfairly Dismissed Because Of Investigating Officer's Mistake

If an investigating officer fails to pass on relevant information to a dismissing officer, could this undermine the reasonableness of the dismissing officer's decision?

What does the law say?

In the recent case of Royal Mail Group v Jhuti (Jhuti), the Supreme Court ruled that an employer who had been manipulated into dismissing an employee for a false reason was liable for unfair dismissal based on the hidden reason. This was the case even though the employer's dismissing officer had dismissed in good faith for another reason. You can read our full report on that case here. Although Jhuti was concerned with an automatically unfair whistleblowing dismissal, the Supreme Court's reasoning applies equally to everyday unfair dismissals.

In this case, the Employment Appeal Tribunal (EAT) applied the Jhuti principle in the context of an ordinary unfair dismissal, where an investigating officer failed to pass on relevant information to the dismissing officer.

What happened in this case?

Mr Uddin was a 43-year old manager and S was a 26-year intern working for the London Borough of Ealing (LBE). One Friday night, Mr Uddin, S and some colleagues went for drinks after work. Mr Uddin and S were drinking heavily and had been affectionate with each other during the course of the evening. However, S later alleged that Mr Uddin had followed her into the disabled toilet towards the end of the evening, locked the door and sexually assaulted her. S also alleged that, when back at work, Mr Uddin had harassed and intimidated her.

LBE's management were alerted to the incident and a disciplinary investigation was triggered. A Mr Jenkins was appointed to investigate the matter. On 12 January 2017, Mr Jenkins concluded there was a case to answer for gross misconduct, namely the sexual assault and the subsequent harassment. A Ms Fair was appointed to chair the disciplinary process.

Mr Jenkins had urged S to report the matter to the police, which she did on 19 January 2017. However, the police identified inconsistencies and discrepancies in S's account. She then withdrew her allegations and said she had felt pressured by LBE and Mr Jenkins to report the matter. On 24 February 2017, the police decided that an action against Mr Uddin was not in the public interest.

By the time the disciplinary hearing took place on 31 March 2017, Mr Jenkins knew that S had withdrawn her allegations to the police. However, he did not pass this information on to Ms Fair. Ms Fair decided...