Unfair Dismissal : Conduct

When is a combination of reasons for dismissal fair?

Dismissing an employee for misconduct can be difficult to judge and many employers that I talk to are often concerned about whether they have sufficient grounds to justify dismissal particularly where there are several incidents of misconduct, and no one incident would be sufficiently serious.

In a recent case decided by the Employment Appeal Tribunal they considered what the correct approach is to cases where there are a chain of several events leading to dismissal.

The Law

The applicable law in relation to unfair dismissal is the Employment Rights Act 1996 which sets out that it is for the Employer to show the reason (or, if more than one, the principal reason) for dismissing an employee.

There are five potentially fair reasons for dismissing an employee which are:

  • Conduct i.e. stealing from petty cash.
  • Capability i.e. the employee is no longer capable of performing their job role because they are unwell.
  • Redundancy i.e. closure of a workplace.
  • Illegality i.e. lorry driver and they lose their driving licence. It would be illegal for them to continue in employment as a lorry driver.
  • Some other substantial reason which brings together a number of different potential reasons.

Once the employer has established a potentially fair reason for the dismissal, the Tribunal must then decide if the employer acted reasonably in dismissing the employee for that reason.

In accordance with the Employment Rights Act 1996 when determining the question of whether a dismissal is fair or not it will depend on:

‘(a) whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.’

The Facts

The employee in this case Miss Robinson was a registered nurse at a residential facility which provided psychiatric and psychological therapy for both male and female military veterans of both sexes.

Her employer, Combat Stress, dismissed her for gross misconduct on the 28th November 2012.

Miss Robinson was dismissed for the cumulative effect of three matters.

Incident one:

This occurred six months before her dismissal and she was alleged to have placed herself, a veteran from the facility and other staff at risk when she had a discussion with him on a one-to-one basis in her car.

Miss Robinson’s case was that it was raining hard and the veteran had approached her in the car park as he wanted to talk. He had become upset and she was in a hurry to get home, so she drove him to the front steps of the centre and dropped him off there without there being any form of handover to other staff.

Combat Stress were concerned that veterans at the facility can be volatile and are vulnerable and therefore Miss Robinson had placed herself at risk by inviting him into her car and then she had placed a vulnerable service user at risk when she dropped him off without a handover.

Incident two:

The second allegation was that Miss Robinson had adopted inappropriate sexualised behaviour and it was alleged by three members of staff that they had been touched inappropriately over the previous four years.

In addition it was alleged that Miss Robinson had discussed her underwear with the receptionist, asking if she had a visible panty line.  On being told that she had, she went to the toilet, removed her underwear and left them on top of her open handbag in reception.

Incident three:

It was alleged that during a one-to-one meeting within the centre with a veteran, she inappropriately used sexualised examples and references to demonstrate a point. It was this incident which prompted the disciplinary hearing, which led to her dismissal.

Miss Robinson knew that she had been invited to the disciplinary hearing in respect of the sexual assault allegation and the one-to-one incident, but no mention of the car park incident was made until the disciplinary hearing itself.

At the disciplinary hearing Miss Robinson broadly admitted and accepted incidents one and three and she admitted to the removal of her underwear.  She however strenuously denied the allegations of sexual assaults by touching.

Following the hearing Combat Stress decided that the third incident of itself was not sufficient to justify dismissal of Miss Robinson, however they decided that when the other incidents were taken into account, the threshold for gross misconduct had been reached.

Miss Robinson made a claim to the Employment Tribunal for unfair dismissal.

The Tribunal found that Miss Robinson’s dismissal was fair and within the range of reasonable responses required for the purposes of the Employment Rights Act.

Although Combat Stress’ investigation into the sexual assault allegation was flawed, because Miss Robinson had admitted incidents one and three, they had acted reasonably in dismissing her for the cumulative incidents even though the final incident alone was not sufficient to justify dismissal.

Miss Robinson appealed to the EAT.

The Decision

Miss Robinson’s appeal was successful and the case was referred back to the Employment Tribunal to be re-heard.

In the Employment Appeal Tribunal’s opinion the Tribunal had erred in focussing only on some of the incidents in question and whether they in themselves could amount to a justifiable reason for the dismissal.

The Appeal Tribunal emphasised that in cases such as this one the Tribunal must look at the employer’s reasons for dismissal as a whole, since that will be the actual reason that the employer has at the time when it dismissed the employee.

Where an employer has a number of reasons which might together form a composite reason for dismissal, the tribunal must look at those reasons as a whole in assessing fairness.

When assessing unfair dismissal it is necessary to:

  • ask what the reason is for dismissal;
  • decide whether the employer acted reasonably by having regard to the totality of the reason given.

Points to note

This case illustrates the process which an Employment Tribunal should go through when deciding unfair dismissal cases and therefore serves as a good example of the approach that employers should adopt when considering dismissing an employee for misconduct.

Where there are a number of reasons for dismissal it is necessary to look at them as a whole and consider whether it is reasonable to dismiss the employee as a result of the combined reasons.

Helpfully for employers a dismissal will not necessarily be unfair if one of the reasons alone would not be sufficiently serious to justify dismissal or if there was a flaw in the procedure adopted for one allegation.

If you would like to read the full case and judgement click here Robinson v Combat Stress.

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.

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