Robinson v Combat Stress

Under Employment Rights Act 1996, the reason for dismissal is the set of facts or beliefs which the employer actually held when it dismissed the employee. It is not a reason which the employer could have had under the same broad category, such as conduct.

Where dismissal rests on several allegations forming a composite reason, the tribunal must assess the fairness of dismissal having regard to the totality of that actual reason. It must also assess the process overall. It errs if it disregards procedurally flawed allegations and then upholds dismissal by deciding that other allegations could independently have justified it, without evaluating the employer’s actual reasoning.

The claimant, a registered mental health nurse, was dismissed for gross misconduct after a disciplinary process concerning three matters: alleged inappropriate sexual touching of colleagues, a car-park incident involving a vulnerable service user, and inappropriate sexualised language in a one-to-one meeting with another service user.

The Employment Tribunal dismissed her unfair-dismissal claim. It found the investigation into the touching allegations seriously flawed, but held that the other two admitted incidents made dismissal fair. The claimant appealed, contending that the Tribunal had failed to address procedural unfairness concerning the car-park allegation, misunderstood the employer’s evidence about the one-to-one incident, and applied the wrong approach under section 98.

The central issue was whether a dismissal could be held fair after the Tribunal had rejected part of the employer’s composite actual reason for dismissal.

1. Appeal allowed. The Employment Tribunal had erred in its application of section 98 of the Employment Rights Act 1996. The statutory inquiry required it first to identify the employer’s actual reason for dismissal and then to assess whether the employer acted reasonably in treating that reason as sufficient.

2. A reason for dismissal comprises the facts or beliefs actually relied on by the employer. Labels such as conduct or capability are only broad categories. Where the employer’s reason is composite, consisting of conclusions about several events, the Tribunal must examine the whole of that reasoning. It may conclude that dismissal remains fair even though some allegations do not withstand scrutiny, but only after evaluating the actual composite reason and the employer’s evidence.

3. The Tribunal had instead sidelined the sexual-assault allegations because of the seriously defective investigation and assessed only the remaining incidents. It thereby considered whether the employer could fairly have dismissed on a reduced basis, rather than whether the dismissal actually made was fair. It also failed to address the employer’s reliance on alleged breaches of the professional code.

4. The Tribunal further misunderstood the evidence by treating the one-to-one incident as conduct which the employer itself regarded as gross misconduct sufficient for dismissal. The dismissing officer had said that this incident alone would probably have warranted a warning. The Tribunal also failed to determine the pleaded procedural complaint that the car-park allegation was first raised at the disciplinary hearing. Fairness of the process had to be assessed overall.

5. The decision dismissing the claim was set aside. The case was remitted for a full rehearing before a fresh Employment Tribunal. The risk of a second bite before the same Judge outweighed the other remittal considerations.

• Employment Appeal Tribunal: appeal allowed and the unfair-dismissal claim remitted to a fresh Tribunal for rehearing.
• Employment Tribunal at Telford: Employment Judge Warren dismissed the claimant’s unfair-dismissal claim in reasons distributed on 13 November 2013.