The Employment Appeal Tribunal recently considered the fairness of a dismissal where the employer's reason for dismissal was the cumulative effect of a number of incidents. Simon Lambert considers its ruling.
In Robinson v Combat Stress UKEAT/0310/14 Miss Robinson was a registered nurse at a residential facility for military veterans until her dismissal by Combat Stress for gross misconduct. She was dismissed after a disciplinary hearing in relation to three matters referred to as: (1) the car park incident, (2) the sexual assault allegation, and (3) the "one to one" incident.
Miss Robinson knew that she had been invited to the disciplinary hearing in respect of the second and third issues, but no mention of the first matter was made until the disciplinary hearing itself. During the disciplinary hearing, however, Miss Robinson admitted the first matter, as well as the third. With respect to the second matter (the sexual assault allegation), she admitted some of the facts, but denied that she had actually touched anyone. In coming to its conclusion the employer did not believe that the third matter (the one-to-one incident) in itself warranted dismissal, but decided that when the other incidents were taken into account, the threshold for gross misconduct had been reached. Miss Robinson brought a claim for unfair dismissal.
The tribunal found that the investigation into the second matter, the sexual assault allegation, was seriously flawed and that no reasonable employer would have carried out the investigation in that way. However, it went on to hold that the dismissal was fair on the basis that Miss Robinson had admitted the car park incident and the one-to-one incident and that the employer's interpretation of Miss Robinson's admissions was within the range of reasonable responses. It then went on to refer specifically to the one-to-one incident and found that it was within the range of reasonable responses for the employer to find it to be gross misconduct (although the employer had decided that this incident on its own did not merit dismissal).
Miss Robinson successfully appealed to the EAT. The EAT made clear that the tribunal had erred as it had not had in mind the actual reasons for which the employer had dismissed which need to be looked at "as a whole". The actual reason included the car park incident, and was not limited to the one to one incident which the employment judge had said the employer was entitled to view as gross misconduct. The EAT went on to make the observation that where an employer relies on a number of distinct incidents as grounds for dismissal the employment tribunal is allowed to consider that only some are justified. The EAT encouraged the parties to conclude the matter by talking or mediating, on the basis that there was some contributory fault on the part of the employee.
What this means for employers
This case serves as a reminder that where the reason for a dismissal is a "composite" reason following a number of incidents, the tribunal's task is to look at whether the employer could be said to be acting within the range of reasonable responses in dismissing as a result of that "composite" reason. The EAT made clear that a dismissal will not necessarily be unfair just because the tribunal finds that it would not have been reasonable for the employer to rely on some of its stated grounds for dismissal.