Investigator’s failure to pass on key information led to unfair dismissal

The Employment Appeal Tribunal has ruled that an investigator’s failure to pass on important new information to the dismissing officer made a dismissal for misconduct unfair.

The case involved an alleged sexual assault by the claimant on another member of staff. It had taken place in a toilet at a bar during a post-work event, but both the claimant and his colleague had been too drunk to have a clear recollection of what exactly had happened. There was some circumstantial evidence, including a statement that the colleague had made to the police, after the investigation report had been completed. However, only the investigating officer, who had presented the management case, knew that the statement to the police had been withdrawn. He failed to reveal this information at the disciplinary hearing.

It was clear from the evidence given to the employment tribunal that the dismissing officer had taken into account the statement made to the police. As a result, the EAT ruled that the failure to tell her that the statement had been withdrawn rendered the dismissal unfair. It therefore overturned the employment tribunal’s decision, reached by a majority, that the dismissal had been fair.

It was still possible that the claimant could have been fairly dismissed, had the dismissing officer known the full picture, but that was something that could only be relevant when assessing the amount of compensation that it would be just to award, not the fairness of the dismissal itself.

The EAT explained that, as in all cases, the fairness of the process needed to be looked at “from end to end”. On the face of it, the key elements of the guidance in British Home Stores v Burchell had been satisfied: there had been a reasonable investigation, and the dismissing officer had reached a belief, formed on reasonable grounds, that the claimant had committed an act of misconduct. However, applying this guidance did not necessarily identify an important element of unfairness that arose between the presentation of the report and the disciplinary hearing: the failure to update the report after important new information had come to light.

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