In Robinson v Combat Stress UKEAT/0310/14, the Employment Appeal Tribunal (EAT) considered the correct approach in cases of unfair dismissal where the employer's reason for dismissal is the cumulative effect of several events.

Facts

The claimant was a registered mental health nurse at a residential facility that provided psychiatric and psychological therapy for military veterans of both sexes. She was dismissed for gross misconduct for the cumulative effect of three matters:

  • The claimant had held a discussion with a veteran on a one-to-one basis in her car, after he approached her wanting to talk to her. She then dropped him off at the front steps of the centre without any handover to other staff. The employer believed that the claimant’s actions had placed herself, the veteran, staff and other service users at risk (the car park incident).
  • An allegation that the claimant had adopted inappropriate sexualised behaviour and had touched three members of staff inappropriately. To this was added an allegation that, following a conversation with the receptionist, the claimant had gone to the toilet, removed an item of underwear and left it on top of her open handbag in reception (the allegation of sexual assault).
  • In a one-to-one meeting within the centre with a veteran, the claimant had inappropriately used sexualised examples and references to demonstrate a point (the one-to-one incident).

The claimant was invited to attend a disciplinary hearing to discuss the one-to-one incident and the allegation of sexual assault. The car park incident was mentioned to the claimant for the first time at the hearing. During the hearing, the claimant admitted the car park incident and the one-to-one incident. She also accepted that she had removed her underwear but denied that she had sexually assaulted anyone by touching.  

The disciplinary officer did not consider that the one-to-one incident in itself justified dismissal but was satisfied that, taking the other incidents into account, there had been gross misconduct. The claimant brought an employment tribunal claim for unfair dismissal.

Employment tribunal decision

The tribunal found that the investigation into the allegation of sexual assault was deeply flawed and that no reasonable employer would have carried it out in that way. The tribunal did not address the allegation by the claimant that the introduction of the car park incident for the first time at the disciplinary hearing was unfair and in breach of natural justice. Despite this, the tribunal was satisfied that the incidents that the claimant had admitted were misconduct and, in the particularly sensitive circumstances in which the claimant was working, it was within the range of reasonable responses for the employer to find it to be gross misconduct. The tribunal therefore held that the dismissal was fair and the claimant appealed.

EAT decision

The EAT allowed the appeal and remitted the claim for rehearing by a different tribunal.  

The EAT made a number of observations about the application of section 98 of the Employment Rights Act 1996 when determining whether a dismissal was fair or unfair:

  • The reason for a dismissal is the set of facts or beliefs that the employer actually has for making the dismissal that occurred when it occurred. Section 98 requires that reason to be identified.
  • That reason is not “conduct” or “capability” or “redundancy” or “breach of enactment” or “some other substantial reason” but it must fall within one of those broad summary categories. A tribunal must look at the reason that the employer actually had for dismissing the employee, not the reason he could have had that also fell within the same broad label.
  • Where dismissal is a composite of a number of conclusions about a number of events, this is the actual reason for dismissing the employee. Accordingly, the tribunal must consider the entirety of the employer’s reason when deciding whether the dismissal was fair or unfair.

The tribunal had erred in disregarding the allegation of sexual assault because of the procedural defects.  This allegation formed part of the employer's reason for dismissing the claimant and accordingly the tribunal had failed to consider the entirety of the employer's reason when deciding whether the dismissal was fair or unfair.  The tribunal had looked at what it would have been reasonable and fair for an employer to have thought, not whether it was in fact what the employer actually thought and whether having regard to that reason was reasonable.  

In short, the tribunal attributed to the employer a view that the employer did not have and, since the tribunal’s task is to evaluate the reason the employer actually had, it fell into error by misunderstanding the evidence and asserting a view the employer did not have.

Comment

This case is a useful reminder that tribunals should always look to the wording of section 98 of the Employment Rights Act 1996 when assessing whether a dismissal is unfair or not and disregard any subsequent “gloss” that might have been placed on the section through case law. 

It confirms that section 98 requires the tribunal to consider the actual reasons the employer had for the dismissal in question and not the justifiable reasons the employer could have had.  

Where the decision to dismiss is based on a number of incidents, the correct approach is therefore to ask:

  • What was the reason for dismissal?
  • Did the employer act reasonably by having regard to the totality of the reason that the employer gives?

The question is not whether the claimant’s conduct was gross misconduct within his contract of employment but whether dismissal was actually outside the range of reasonable responses to that which the employer reasonably thought the claimant had done. A dismissal can still be fair even where the tribunal determines that it would not have been reasonable for the employer to rely on some of the grounds on which it relies.

The penultimate paragraph of the judgment is also interesting, as it encourages the parties to resolve the matter through mediation, indicating that there was some contributory fault on the part of the employee that would significantly limit any compensation even if she were successful at the rehearing.