Under English law, when dealing with an unfair dismissal claim, the employer must be able to show the main reason for dismissing their employee to be ‘fair’. In cases where there is more than one incident or reason for the dismissal, the tribunal will look at whether or not they reasonably believe that these reasons are enough to fairly dismiss the employee.

In the case of Robinson v Combat Stress (CS) UKEAT/0310/14, three particular incidents were referred to as being committed by the employee (Miss D Robinson) who was a registered nurse at Combat Stress, a residential facility which cares for military veterans. They were the car-park incident, sexual assault allegation and one-to-one incident.

• Car-park incident: Robinson held a conversation with a veteran of the facility in her car in a one-on-one setting. She drove him to the front steps of the centre and dropped him off (when he was in a vulnerable state) without proper handover.

• Sexual assault allegations: Alleged that Robinson acted in an inappropriately sexualised manner towards other staff including touching and discussion/removal of underwear.

• One-to-one incident: Robinson used inappropriate sexualised examples to demonstrate a point in a discussion with a veteran.

CS had considered that all three incidents together had amounted to gross misconduct by the employee and felt it to be sufficient to terminate the employment of Robinson.
Robinson, however, claimed that the dismissal was unfair before the Employment Appeal Tribunal and this was subsequently rejected.
The tribunal found that it was fair for CR to dismiss Robinson based on the fact that she had admitted to the two incidents, being the car-park and one-to-one incidents. The tribunal added that the one-to-one incident on its own would amount to gross misconduct and CS would therefore, have been entitled to dismiss R based on this incident alone.

R appealed against this decision. The appeal was approved and the matter will shortly be re-heard by a new tribunal. Where a number of incidents have led to the dismissal of an employee, it is for the tribunal to examine the whole of the reasoning provided by an employer, taking into consideration all of the circumstances as opposed to looking at whether each incident on its own could be a fair/unfair reason for dismissal.

This case highlights to employers yet again the importance of carefully considering the reasons for dismissing an employee, particularly where they rely on gross misconduct as their reasoning and ensuring that the reasons are ‘fair’.
For further information, please contact Koichiro Nakada – Head of Japan Business Group (koichiro.nakada@lewissilkin.com) and Yoko Nakada - Senior Associate, Deputy Head of Japan Business Group (yoko.nakada@lewissilkin.com).
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