02 FEB 2015
Dismissal for multiple allegations
Solicitor, Veale Wasbrough Vizards
When considering a dismissal based on the cumulative effect of multiple allegations, an Employment Tribunal (ET) must consider the whole of the reason for dismissal rather than just those parts of the reason that are procedurally sound or objectively justifiable when considered in isolation, held the Employment Appeal Tribunal (EAT) in Robinson v Combat Stress.
Miss Robinson worked as a registered mental health nurse at Combat Stress, a facility which provided psychiatric and psychological therapy for military veterans. She was dismissed for gross misconduct on 28 November 2012 following a disciplinary hearing. The allegations heard at the hearing arose from three incidents: an allegation that she had placed a service user, herself and other staff at risk by failing to conduct a handover following a discussion with a veteran on a one-to-one basis in her car; allegations of sexual assault, and an allegation that she had used inappropriately sexualised examples and references to demonstrate a point in a one-to-one meeting with a service user (the Third Allegation).
Miss Robinson brought a claim for unfair dismissal arguing that her employer's investigation and procedure in the first two incidents were procedurally incorrect. The ET agreed with the Claimant but, focussing on the Third Allegation, found that it was within the range of reasonable responses for Combat Stress to dismiss for gross misconduct and that dismissal was therefore fair. The ET reached this decision despite the witness evidence of the disciplinary officer that he did not consider that the Third Allegation, on its own, would justify dismissal. Miss Robinson's appeal against this finding was upheld by the EAT. When assessing whether a dismissal is fair, the ET must look at the employer's actual reason for dismissal and, where that reason involves the cumulative effect of multiple allegations, the ET must consider fairness as a whole, including the procedural fairness of each strand of the overall reason. The ET must not substitute its own view where it considers that one or more allegations would justify dismissal in isolation. The case was remitted to a fresh tribunal.
A number of points of relevance to employers come out of this decision, including:
- there will be circumstances where the cumulative effect of multiple allegations justifies dismissal
- it is crucial to avoid an adverse decision in the ET that a reasonable investigation and fair disciplinary procedure is undertaken in relation to any allegation which ultimately contributes to a member of staff's dismissal
- to assist any Tribunal that will later consider a decision to dismiss it is advisable to clearly document the disciplinary panel's reasoning for concluding that dismissal is a reasonable and appropriate sanction. If multiple allegations are being heard and the panel consider that cumulatively these warrant dismissal this should be documented. Likewise, if the panel consider that any individual allegation would justify dismissal in isolation this should also be documented
Cases involving multiple allegations can be complex but adopting a logical and thorough approach will assist. As will having a clear and helpful disciplinary policy.