Student Lawyer Blog: Can employers use cumulative incidences as reasons for dismissal?

Case: Robinson v Combat Stress [2014] UKEAT 0310_14_0572

Facts:

Miss Robinson was a registered Mental Health Nurse at Combat Stress – a facility that provided therapy for military veterans of both sexes. She was dismissed because of three events that Combat Stress perceived to be cumulative.

The events were:

1)     Miss Robinson invited a veteran inside her car on a rainy day to have a one-to-one conversation when she was approached by him. She dropped him off in front of the steps of the centre without any handover to the staff.

2)     Sexual allegation events were put into one category:

a.       In the first allegation, Miss Robinson had apparently inappropriately touched three members of staff over a period of four years.

b.       The second allegation referred to Miss Robinson asking a receptionist if her panty line was showing through her clothes. When the receptionist said yes, she went to the toilet to remove them and placed them on top of her bag by the reception.

3)     And finally, in a one-to-one meeting with a veteran, Miss Robinson used sexualised examples and references to make a point.

Miss Robinson was called to a disciplinary hearing for the second and third event but was not informed that the car park incident would be discussed. This placed her at a disadvantage during the meeting as she was not given an opportunity to prepare her case adequately. Whilst it wasn’t yet a requirement, it was customary for employers to inform their employees what they were being called for.  ACAS included this in their grievance and disciplinary procedures the next year in their Code of Practice 2015.

At the disciplinary hearing, Miss Robinson admitted to some elements of the alleged events but denied inappropriately touching members of staff. Combat Stress did not feel that any of these events on their own warranted dismissal unless they were considered altogether. Miss Robinson was dismissed for her conduct, under section 98 of the Employment Rights Act 1996. She felt that this was unfair and brought a claim to the Employment Tribunal against Combat Stress.

The Employment Tribunal considered the case and held Combat Stress were within their right to dismiss Miss Robinson as the car park incident was so serious it amounted to gross misconduct. They also found that the investigations into the second events were so seriously flawed and no other reasonable employer would have conducted them in that way. The Employment Tribunal felt that dismissal for the final event was within the range of reasonable responses and was fair. Miss Robinson’s case was rejected by the Employment Tribunal. Dissatisfied with the Employment Tribunal’s rejection of her claim Miss Robinson appealed as Combat Stress had already admitted that none of the events warranted dismissal when considered in isolation.

The Employment Appeals Tribunal heard the appeal and stated that the Employment Tribunal should not have submitted its own judgement. They did not have regard for the actual reason that Miss Robinson was dismissed – which was for three cumulative events. The Employment Appeals Tribunal stated where a number of reasons are given for dismissal, the Employment Tribunal is allowed to consider that only some are justified so long as they have regard for employer’s actual reasons for dismissal, rather than the justifiable reasons they could have had. They concluded that the fairest solution was to resubmit the evidence to the Employment Tribunal where it could be heard anew.

This case was fundamental in the development of British employment law. The Judgment gave the Employment Tribunals the opportunity to be proactive in cases but restricted their ability to deviate from the facts. Where employers give multiple reasons for dismissal, it is the Employment Tribunal’s task to look at whether the employer is acting within the range of reasonable responses.

Fast forward to employment law today: there are now strict procedural requirements which must be followed when dismissing someone who has sufficient service. Fair reasons for dismissal are found within the Employment Rights Act 1996 and correct procedure is contained within ACAS’s Code of Practice. This ensures that both employers and employees know the rights and responsibilities attached to each party. Hence cumulative incidences can be deemed reasons for dismissal as long as the employer behaves within the range of reasonable responses and follows correct procedure.