In circumstances where the real reason for dismissing someone has been hidden by a manager, the hidden reason can be attributed to the employer. In Uddin v London Borough of Ealing, the Employment Appeal Tribunal (EAT) held that this principle can be extended to circumstances where tribunals are considering the reasonableness of the decision to dismiss.

Basic facts

Mr Uddin got very drunk during a Friday night out in a pub with work colleagues, one of whom was a 26-year-old intern known as SR. After being seen going into the disabled toilet together, they were followed by two other work colleagues who urged them to come out. The following Monday, Mr Uddin talked to both SR and one of the colleagues, asking them not to say anything to anyone else about it. He also told SR that they were both to blame.

SR, who by then had discovered that she had extensive bruising to her chest, did not agree. Instead she accused Mr Uddin of assaulting her. This prompted the company to initiate a formal investigation by a retired police officer, Mr Jenkins, who encouraged SR to report the matter to the police. She later withdrew the complaint, however, when the police identified several inconsistencies in her testimony. She also signed a statement saying she could not remember being sexually assaulted.

Following a disciplinary hearing, Mr Uddin was dismissed for gross misconduct by a manager, Ms Fair, who was not told that SR had withdrawn her complaint of assault to the police. Mr Uddin brought a number of claims including unfair and wrongful dismissal.

Tribunal decision 

The tribunal held that the investigation, although tough, was thorough and the report reflected the material on which it was based. It also noted that Ms Fair was aware of discrepancies in SR’s evidence and over the course of a two-day hearing Mr Uddin had had ample opportunity to challenge the evidence.

A majority of the tribunal therefore concluded that the Council had reason to find gross misconduct. Mr Uddin appealed on a number of grounds, including the fact that the manager who took the decision to dismiss was not told that that SR had withdrawn her complaint to the police.

EAT decision

The EAT held that the question for the tribunal under section 98(4) of the Employment Rights Act 1996 was whether the failure to share the information about the withdrawal of the complaint to the police affected the reasonableness (and therefore the fairness) of the decision to dismiss Mr Uddin for gross misconduct.

To help answer that question, it referred to the decision of the Supreme Court in Royal Mail Group Ltd v Jhuti (weekly LELR 656) which held that if a manager hides the real reason for dismissing someone, the reason for the dismissal is the hidden one rather than the one that was invented.

In this case, however, the EAT was concerned with the reasonableness of the decision to dismiss, rather than the reason for dismissal. To that end, it held that it was important to remember that Ms Fair was aware that SR had complained to the police and attached some significance to the fact that she had done so. Indeed, in her own evidence to the tribunal, Ms Fair acknowledged that had she known about the withdrawal, she would have wanted to understand the reason for it. This failure to tell Ms Fair should therefore have been regarded by the tribunal as a significant issue that, in fairness to Mr Uddin, should have been considered.

The EAT therefore allowed the appeal on that basis and remitted the matter to be reconsidered by the same tribunal.