Uddin v London Borough Of Ealing

In a conduct dismissal, fairness under section 98(4) requires an assessment of the whole dismissal process, including the investigation, disciplinary hearing and appeal. The Burchell questions are important but do not exhaust that assessment.

Where an investigator who remains involved in presenting the management case knows of material information capable of supporting the employee, fairness may require that information to be given to, and considered by, the dismissing officer. A tribunal must decide that procedural issue at liability stage. It must not treat the question whether the officer could nevertheless have dismissed as a complete answer. That later question belongs to remedy, including any Polkey assessment.

The claimant was summarily dismissed for gross misconduct after allegations of inappropriate sexual conduct towards a younger colleague at a work-related social event, and subsequent conduct said to place moral pressure on her not to complain.

The Employment Tribunal dismissed unfair and wrongful dismissal claims by a majority, and dismissed direct sex and age discrimination claims unanimously. It held that the dismissal remained fair although the disciplinary officer did not know that the complainant had withdrawn her police complaint.

The claimant appealed. The central issue was whether the investigator's failure to disclose that withdrawal made the dismissal unfair under section 98(4) of the Employment Rights Act 1996.

1. Appeal allowed in part. The EAT substituted a finding that the claimant had been unfairly dismissed. It dismissed the challenges to wrongful dismissal and to the discrimination claims.

2. Under section 98(4) of the Employment Rights Act 1996, the tribunal had to assess the fairness of the end-to-end process, including appeal. In a conduct case, the Burchell inquiries remain central, but do not exhaust every consideration relevant to fairness. The inquiry is whether the employer acted reasonably in the circumstances.

3. The investigator had conducted the pre-investigation and presented the management case at the disciplinary hearing. Before that hearing he knew that the complainant had withdrawn her police complaint, but did not tell the disciplinary officer or the claimant. That information was potentially supportive of the claimant's case. Since the disciplinary officer had relied on the fact of the police complaint and said she would have wanted to know why it had been withdrawn, fairness required her to consider the later withdrawal.

4. The Employment Tribunal erred by asking whether there was still enough other evidence to dismiss if the reference to the police complaint were removed. A complaint made and later withdrawn could not automatically be treated as equivalent to a complaint never made. Once the failure to consider the material information rendered the process unfair, the possibility that the officer would or might still have dismissed fairly was a remedy issue, including any Polkey assessment.

5. The findings that the employer could reasonably infer an assault from the photograph and the surrounding evidence, and could take account of the claimant's later moral pressure on the complainant, were not perverse. The agreed list of issues confined the discrimination allegations concerning the investigator to specified comments. A stereotyping argument did not enlarge the pleaded conduct; the discrimination appeal therefore failed.

6. The case was remitted to the same Tribunal if available to determine remedy, including the chance of a fair dismissal had the withdrawal been disclosed and any contributory conduct.

• Employment Appeal Tribunal: Allowed the appeal against dismissal of the unfair dismissal claim and substituted a finding of unfair dismissal: [2020] UKEAT 0165_19_13023. Dismissed the appeals concerning wrongful dismissal and discrimination. Remitted remedy issues.
• Employment Tribunal: By a majority, dismissed unfair and wrongful dismissal claims in a Reserved Judgment promulgated on 15 January 2019. Unanimously dismissed direct sex and age discrimination claims.