Part One of this case comment is available here. matthew-purchase

Wider impact 

There are a number of ways in which this judgment opens the door to arguments about its wider impact.

One has already been addressed in the Employment Appeal Tribunal. In Uddin v London Borough of Ealing (UKEAT/0165/19/RN), the EAT held that Lord Wilson’s analysis applied not only to the reason for the dismissal under the 1996 Act, s 98(1) but also to the reasonableness of the dismissal under section 98(4). That was, at least on one reading, contemplated by Lord Wilson in his judgment. However, the EAT arguably went one step further in holding that, where an investigating manager failed to disclose a salient fact to the decision-maker, that could form part of the analysis of the reasonableness of the dismissal whatever the reason for that failure (i.e. even if there had been a genuine oversight) [80].

Secondly, there remains a real doubt as to where the line should be drawn in terms of ascribing to the employer the reasons (or, as per Uddin, the knowledge) of a person other than the decision-maker.

The first category of persons addressed in Jhuti covers those involved in the disciplinary process, whether or not they are more senior than the employee in the ‘hierarchy of responsibility’. But what does that mean? Clearly, an investigating manager will be covered. But what about a person who commences disciplinary proceedings and then takes no further part? Such a person would appear to be covered by Underhill LJ’s formulation in Baddeley v The Co-Operative Group [2014] EWCA Civ 658 – ‘another person involved in the disciplinary process’ – but arguably not by Lord Wilson’s own formulation at [53] – ‘some person involved in the disciplinary inquiry’. Still, such a person would probably be covered. However, what about a witness who gives evidence during the disciplinary process, or the individual who makes the underlying allegations?

Thirdly, would it be enough if the reason put forward by the other person and relied on by the decision-maker was not the other person’s true reason, or must it also be substantively false? Lord Wilson used the terms ‘bogus’ and ‘invented’ to describe the hidden reason, which could be taken to suggest the latter. However, it seems strongly arguable that, in this sort of case, the employment tribunal ought to be looking simply to identify the real motivation which brought about the dismissal and not to analyse the merits of any substitute reason put forward. The legitimacy of that reason would be relevant only if it was a ‘potentially fair’ reason, in which case the tribunal would need to consider reasonableness (in theory, at least – it is difficult to see how a dismissal in these circumstances could be reasonable) and might, for the purposes of deciding remedy, need to consider whether the employee would have been dismissed in any event or had committed ‘contributory fault’.

A related question concerns a case in which the real, underlying reason was actually aired before the decision-maker. At [60] of Jhuti, Lord Wilson seemed to think it important that – while ‘the decision-maker will generally address all rival versions of what has prompted the employer to seek to dismiss the employee and, if reaching a decision to do so, will identify the reason for it’ – this had not happened in Ms Jhuti’s case because she was unable to participate in the proceedings. In other scenarios, this might not happen because the employee was unaware of the possibility of an improper motive at the time. However, what if the employee is aware and makes the allegation to the decision-maker, who rejects it, wrongly but in good faith? Arguably, Jhuti suggests that, in such a case, the reason for the dismissal would be the decision-maker’s reason. This fits with the general approach taken in unfair dismissal claims to reviewing decisions made by decision-makers: generally, the tribunal would not ask whether the decision was right or wrong but simply whether it was within the range of reasonable responses (though see Reilly v Sandwell Metropolitan Borough Council [2018] ICR 705). However, it is not easy to see any principled reason why the tribunal ought to approach such a case differently from a case in which the employee did not raise the issue: arguably, the key question is whether the tribunal is satisfied that, in fact, the dismissal was procured by a more senior manager or participant in the process who had an improper reason for acting as he did.