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You don’t know what you don’t know!

March 2, 2020
Business Law

Here’s an interesting one; what happens if an employee is dismissed by one manager when another manager knows something which would call the fairness of that dismissal into question? Do we concern ourselves only with what the dismissing manager knew or thought at the time of the dismissal? Or can the other manager’s knowledge be taken into account? Two recent cases have considered this conundrum.

Royal Mail v Jhuti

In the Jhuti case, a senior manager dismissed a member of the marketing team for what she believed to be genuine shortcomings in Ms. Jhuti’s performance. However, evidence placed before the Employment Tribunal called into question the legitimacy of the performance management process. Instead, it looked like the dismissal might have been orchestrated by the line manager as a direct response to Ms. Jhuti having previously raised concerns about a potential breach of Ofcom guidance. Ms. Jhuti’s unfair dismissal claim went all the way up to the Supreme Court. There, 5 Supreme Court judges decided that the line manager’s knowledge was relevant when deciding whether the employer had fairly dismissed the employee, regardless of whether the dismissing manager was aware of the relevant matter.

Uddin v London Borough Of Ealing

When the Employment Appeal Tribunal heard the case of Uddin, they grappled with a similar sort of problem. Here, the employee was dismissed after being accused of inappropriate sexual behaviour towards a colleague. The dismissing manager relied heavily on the fact that the alleged victim had made a complaint to the police. What he didn’t know is that the police complaint has actually been withdrawn. This information was known to the investigating officer and substantially undermined the case for dismissal.  

Applying the principles established in Jhuti, Judge Auerbach concluded that the knowledge of the investigator could be taken into account when deciding whether the dismissal was fair.

So what?

These cases underline the importance of ensuring that the case for dismissing an employee is properly discussed and aired. It is not just about what the dismissing manager knows and understands at the time of dismissal. The knowledge, the understanding and the motives of other managers may be relevant. Tread carefully!

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