Surely it must be the case that an employer would be safe to dismiss an employee who has admitted gross misconduct? Well, no, not necessarily, as the employers in two recent cases found out.
Our recent post ‘Disability related disciplinary‘ covered the first case, in which it was found that, even though the employee had admitted sexually assaulting two female colleagues, his admission of misconduct did not constitute an admission of culpability and the dismissal was unfair.
The second case involved a female nurse, Ms Robinson, who worked at a residential facility for military veterans. Ms Robinson was accused of three matters. The first, labelled by the employment tribunal as the ‘car park incident’, was one in which she had picked up a distressed veteran in the car park and dropped him off at the front steps of the centre, in the rain, without making sure of his safety because she was in a hurry to get home.
The second, the ‘allegation of sexual assault’, comprised accusations by some of her colleagues that she had inappropriately touched them and an allegation that she had discussed her underwear with the receptionist before removing it and leaving it on top of her open handbag in the reception area.
The third matter was called the ‘one to one incident’, in which she was alleged to have ‘inappropriately used sexualised examples and references to demonstrate a point’ in an individual meeting with a veteran at the centre.
The three matters were considered at a disciplinary hearing. Ms Robinson was only made aware of the car park incident at the disciplinary hearing and there were considerable flaws in the way in which the sexual assault allegations were investigated. Nevertheless, Ms Robinson admitted the car park incident and the one to one incident. She also accepted the incident related to the removal of her underwear. She strenuously denied, however, the inappropriate touching allegations.
Taking into account the seriousness of the allegations and the admissions made by Ms Robinson, the employer decided to dismiss for gross misconduct. An internal appeal was not upheld, nor was her claim for unfair dismissal to an employment tribunal.
Her appeal to the Employment Appeal Tribunal, however, succeeded.
The Employment Appeal Tribunal made some important comments about the reasons it decided to uphold the appeal and remit the case to a different employment tribunal.
First, when considering whether or not to dismiss, the employer must identify the reason for dismissal. That reason will fall into a category, such as ‘conduct’ or ‘capability’ but will be the actual facts on which the decision to dismiss is based.
Secondly, the employment tribunal’s approach is to ask what the reason was for the dismissal and, then, whether the employer acted reasonably or unreasonably by having regard to that reason. That reason, where there is more than one allegation under consideration, is the totality of the reason given by the employer.
This case is a useful reminder for employers (and employment tribunals) of the importance of identifying clearly the grounds on which they base the decision to dismiss and of following a fair procedure, even if the employee has admitted gross misconduct.
As we all know, the law in this area does not stand still, that’s why we have decided to run some detailed masterclasses to develop expert investigators, disciplinary and appeal officers. Delegates will be given practical tips for creating a transparent framework to facilitate effective action. The objective is to ensure a fair process for all, reducing litigation and improving prospects of successfully defending claims if they do result. If you are interested in attending, click here for more information, or email firstname.lastname@example.org.
 Burdett v Aviva Employment Services Ltd 
 Robinson v Combat Stress