Employment Essentials: 5 Lessons From February 2020

Our first 2020 Employment Essentials insight is here. Gowling WLG's employment, labour & equalities experts bring you the latest top five employment law developments that may affect your business:

1. Unfair dismissal: what the employer is deemed to know

To establish that a dismissal is fair, the employer must establish that it (1) dismissed for a potentially fair reason and (2) it acted reasonably in treating the reason as sufficient to justify dismissal.

When identifying the reason for a dismissal, courts generally only need to look at the reason(s) of the appointed decision-maker. In most cases, it is the mental processes of the person or persons who was or were authorised to, and did, take the decision to dismiss that are relevant. However, at the end of last year, the Supreme Court in Royal Mail Group v Jhuti [2019] UKSC 55 confirmed that the employer will be liable for the reasons of any manipulator in the "hierarchy of responsibility above the employee" even where that reason is hidden from the decision maker.

The improper actions or motive of a line manager will therefore be attributed to the employer. In other words, if a line manager determines that an employee should be dismissed for one reason (for example, whistleblowing or trade union activities), but hides it behind an invented reason (for example, poor performance) which the decision-maker adopts, the reason for the dismissal is the hidden (unfair) reason rather than the fair invented reason (the 'attribution principle').

But does the attribution principle also apply in relation to the second part of the unfair dismissal test of "acted reasonably in treating the reason as sufficient to justify dismissal"? The Employment Appeal Tribunal (EAT) in Uddin v London Borough of Ealing has answered - YES. The principle set down in Jhuti applies not only to attribution of knowledge as to the reason for dismissal but equally applies for the purpose of assessing whether the employer acted reasonably in dismissing.

In this case, Mr Uddin, a deputy team leader in the family intervention programme, was dismissed for alleged sexual misconduct. The dismissing officer, Mrs Fair (yes that is her real name) considered the investigating officer's (Mr Jenkins) report. In taking the decision to dismiss, Mrs Fair placed weight on the reference in the report to the alleged victim having made a police report. Shortly after Mr Jenkins submitted his report, he was made aware that following police questioning, the alleged victim withdrew her allegation to the police as she "didn't realise it would be so griefy and that she felt pressured by the council/Mr Jenkins". Mr Jenkins failed to pass that information on to Mrs Fair.

The EAT concluded that Mr Jenkins' involvement in the dismissal process did not end with the presentation of his investigation report and recommendations. The fact that he knew that the alleged victim had withdrawn her allegations (and why) and that Ms Fair took her decision in ignorance of this was something the tribunal should have considered when determining whether the employer acted reasonably in treating the reason as sufficient to justify dismissal. As a result, the employee had been unfairly dismissed.

Lessons for employers:

The scope of information that will be deemed known (attributed to) to the employer when making a decision to dismiss is wide. The EAT's decision has applied the reasoning in Jhuti to circumstances in which a failure to provide accurate and up-to-date information undermined the dismissing manager's ability to consider the true position rather than manipulation. The motivation of the investigating officer was not explored or considered to be relevant. Those involved from the beginning to the end of a disciplinary process must ensure that the information that they provide is and remains accurate, particularly a process in which the employee's reputation or ability to work in their chosen field of employment is potentially affected. Where new relevant information becomes known after the investigating...