CIPD: Employers need to be clear on misconduct evidence. In a recent case, Robinson v Combat Stress, the Employment Appeal Tribunal set out the proper approach for tribunals to follow where an employer relies on a number of distinct grounds for dismissing an employee.
When a dismissal claim case comes before an employment tribunal, the tribunal must identify the ‘reason’ for that dismissal. The employer’s reason for the dismissal must be capable of falling within five categories, namely capability, conduct, redundancy, statutory illegality or ‘some other substantial reason’ (SOSR) in order for the employer to establish a fair reason for the dismissal.
Where the reason for the dismissal is a composite of different events, the employment tribunal must examine the whole of that reasoning before it can assess whether or not the dismissal was fair.
Robinson was a registered mental health nurse who worked with war veterans. She was dismissed for three matters: a one-to-one incident, which prompted a disciplinary hearing; an incident in a car park, which occurred six months before the disciplinary hearing; allegations of sexual assault, involving the touching of three members of staff inappropriately over the previous four years.
Robinson admitted to the one-to-one incident and to what happened in the car park. She also admitted to one aspect of the third allegation (removing her underwear and leaving it on top of her open handbag in reception), but she denied the sexual assault accusation.
The manager handling the dismissal gave the following evidence in the employment tribunal: “Although I made a finding that [the claimant] had displayed inappropriate conduct …which she admitted to, I did not think that this, on its own, was enough to justify dismissal. I felt that her actions in this respect amounted to misconduct but had this been my only finding against [her], then I think that an alternative sanction, such as a written warning, may have been more appropriate. …”
The employment tribunal found that the investigation was seriously flawed in respect of the inappropriate touching allegation, and noted that the car park incident was raised with Robinson for the first time at the disciplinary hearing itself. However, the tribunal decided that the employer was entitled to view the one-to-one incident which prompted the disciplinary hearing as gross misconduct, and held that the dismissal was fair. Robinson appealed.
The Employment Appeal Tribunal had to consider whether the dismissal was capable of being fair given that part of the reason given by the employer (the car park and the touching incidents) had been rejected by the employment tribunal. The EAT decided that the tribunal had not looked at the whole of the actual reason for dismissal, which consisted of three separate complaints. The tribunal had “sidelined” the sexual assault allegation as an adequate reason for dismissal because of the inadequate process the employer had adopted to deal with it. The tribunal had then looked separately at the other two complaints without appreciating that they were only part of the reasons which the employer actually had for the dismissal.
The appeal was allowed and the case remitted to a fresh tribunal for re-hearing.
Where an employer relies on a number of reasons together for a dismissal, the tribunal’s task is to look at the whole of those reasons in assessing whether the dismissal was fair or not. If some parts of that reason fall away, even if the dismissal is unfair, a tribunal may conclude that dismissal would have occurred if only one or some of those incidents had been established, and it might decide that compensation should be limited accordingly. Such a determination involves close evaluation of the employer’s reasoning.
It is crucial that employers who dismiss in these circumstances give very clear reasons for dismissal and, if they consider that any one of the strands of the composite reason would have resulted in dismissal, that that is made clear in their evidence.