In situations where there are multiple allegations of misconduct, employers need to tread carefully to avoid unfair dismissal, writes Mark Foster.
Disciplinary cases involving a number of separate allegations within the same disciplinary process are not unusual. In such matters it is crucial to understand the approach that a Tribunal will take to both your consideration of the various allegations and your decision on the outcome. This is particularly important if you conclude that more than one of the allegations justifies a penalty of dismissal.
In the case of a particularly unsatisfactory employee, you may find that you have several reasons for dismissal. Since the Employment Rights Act 1996 requires you to show the reason or, if there was more than one, the principal reason for the dismissal, where there are multiple allegations a Tribunal will scrutinise very carefully the conclusions that you reach. This approach is intended to prevent unscrupulous employers from taking a scattergun approach in the hope that one or two of the charges might stick.
To give an example, we recently conducted an Employment Tribunal hearing where this situation had arisen. The employee had been charged with four separate disciplinary allegations. Three of those allegations related to the same type of conduct, namely bullying, by a manager towards three of his direct reports. The fourth allegation was of an entirely separate nature and related to an attempt by the manager to influence the evidence of a colleague who he knew would be asked to give evidence in the course of the disciplinary investigation.
The employer found all four allegations proven and decided to impose a penalty of dismissal. At the Tribunal hearing the Employment Judge was keen to understand whether the employer had assessed each of the allegations individually and decided upon separate penalties, or whether it had reached a decision to dismiss based on an accumulation of the four charges.
There were two particular case authorities that the Tribunal focussed upon in deciding the matter:
1. In Tayeh v Barchester Healthcare Limited the Employment Appeal Tribunal had concluded that that where an employee faced disciplinary proceedings relating to more than one charge, a Tribunal has to consider whether the employer regarded the charges as being cumulative or standing alone. If the charges were cumulative and they collectively formed the principal reason for dismissal, it would be fatal to the fairness of the dismissal if any significant charge had been taken into account without reasonable grounds. By contrast, if the employer is alleging a number of different grounds for dismissal and that each ground justified dismissal independently of the others, it will be sufficient if at least one of the grounds is established.
2. In Robinson v Combat Stress the Employment Tribunal identified three complaints which collectively formed the reason for dismissal. The Tribunal found that the investigation into one of the allegations (sexual assault) was ‘deeply flawed’. However it concluded that the dismissal based on the remaining two allegations was fair. The Employment Appeal Tribunal held that the Tribunal had incorrectly side-lined the serous allegation of sexual assault and hadn’t appreciated that the other two allegations were only part of the employer’s reason for dismissal. It had been wrong for the Employment Tribunal to conclude that the employer could have fairly dismissed if it had eliminated from its consideration the allegation of sexual assault, because the employer had in fact taken the third allegation into account.
Thankfully, in this particular case, the employer had considered each of the four allegations separately and had concluded that each of them, separately, amounted to gross misconduct justifying summary dismissal. Therefore, whilst the Tribunal had particular reservations about one of the allegations, this did not make the dismissal unfair. A finding that any one of the four allegations justified dismissal was sufficient and the Tribunal concluded that three of the allegations were justified. The dismissal was therefore fair.
So, what conclusions can we draw from this? The following guidelines should help you dismiss fairly where there are multiple allegations of misconduct in play:
- Consider carefully the allegations that you wish to put to the employee;
- Ensure that the investigation is sufficient to allow individual consideration of each of those allegations. If it is not, further investigation will be required;
- Reach factual conclusions on each allegation and in each case reach a finding as to whether it is proven and why;
- Reach a finding on an appropriate level of penalty in each case; and
- Record your deliberations and decisions in respect of each allegation.
If you are unsure about which allegations to take into account, how to phrase a formal disciplinary charge or how best to set out your conclusions to protect your position, it is always best to seek legal advice at an early stage.