Tom Stenner-Evans
Posted on 26 Jan 2015

Employment Law Update – Unfair Dismissal

Case Update - Evaluating Employer's Reasons for Dismissal 'As a Whole'

Robinson v Combat Stress [UKEAT/0310/14]

Facts

The Claimant was a registered nurse. She was dismissed for gross misconduct on 28 November 2012, after a disciplinary hearing in relation to three matters. For ease of reference, they will be referred to as:

  • The car park incident;
  • The sexual assault allegation; and
  • The one to one incident.

The Claimant knew that the disciplinary hearing had been convened in respect of the sexual assault allegation and the one to one incident. However, there was no mention of the car park incident until the disciplinary hearing itself.

During the disciplinary hearing, the Claimant admitted the car park incident and the one to one incident. She admitted some of the facts of the sexual assault allegation, but denied that she had actually touched anyone.

The employer did not consider that 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.

The Claimant brought a claim for unfair dismissal.

At the first instance Employment Tribunal, it was held that the investigation into the sexual assault allegation was flawed, and no reasonable employer would have carried out the investigation in that way. However, the Judge held that the dismissal was fair on the basis that the Claimant had admitted the one to one incident and the car park incident, and the employer had interpreted these admissions within the range of reasonable responses.

The Claimant appealed to the Employment Appeal Tribunal ('EAT').

The Judgment

The EAT allowed the appeal.

The EAT stated that, when deciding if the dismissal is fair with regard to reasonableness, the actual reason for the dismissal must be taken into account. If an employer has a number of reasons which might together form a reason for dismissal, the Tribunal must look at these reasons as a whole.

In the Claimant's case, the Tribunal had identified three complaints which the employer had given as the reason for the dismissal. However, the Tribunal had discounted the sexual assault allegation on the basis of the defects relating to the investigation, so considered only the car park incident and the one to one incident. It did not appreciate that those two complaints were only part of the reason that the employer had for dismissal.

The EAT held that the correct approach is for a Tribunal to ask what the reason is for dismissal, and then to deal with whether the employer acted reasonably, by having regard to the totality of the reason which the employer gives. Therefore, the EAT remitted the case to be heard by a new Tribunal.

Tips for Employers

This is a useful reminder that, where the reason for a dismissal is a 'composite' reason following a number of incidents, the Tribunal must look at all the incidents as a whole, and 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 emphasised that a dismissal will not necessarily be unfair just because the Tribunal finds it would not have been reasonable for the employer to rely on some of its stated grounds for dismissal.


Legislation Update

National Minimum Wage: Response to Consultation on Draft Consolidated Regulations

On 22 January 2015, the government published its response following its consultation on the draft National Minimum Wage (Consolidation) Regulations, which attempt to consolidate the national Minimum Wage Regulations 1999 and the numerous amending regulations.

The government intends to provide further clarification and improve its guidance on issues raised during the consultation, including entitlement to the National Minimum Wage during sleep-in shifts and ensuring the formal for calculating hourly rates addresses unlawful practices, such as rolled-up holiday pay.