Why handling each issue separately might avoid an unfair dismissal

Disciplining an employee can be a difficult task at the best of times but, when there is more than one allegation, employers need to take extra care about how they structure the process and apply disciplinary sanctions. A recent Employment Appeal Tribunal (EAT) decision in the case of Pennine Care NHS Foundation Trust v Mundangepfupfu offers a cautionary tale on this.

When considering whether a decision to dismiss an employee for misconduct is fair, tribunals will ask whether the employer had a fair reason for the dismissal and whether a fair procedure, including a thorough investigation, was carried out. In this case, a nurse who had worked for the trust for 10 years was dismissed for gross misconduct. The disciplinary process addressed three allegations: an ‘assault’, a safeguarding issue involving a patient, and failing to follow a reasonable management instruction.

The employer chose to aggregate the allegations, meaning that the decision to dismiss the nurse was based on the cumulative effect of all three adding up to gross misconduct. This in turn meant that if the employer was unable to prove just one of the allegations, the dismissal would be unfair, even if any one of the other allegations may have warranted dismissal in its own right.

An employment tribunal found that none of the allegations had been satisfactorily dealt with. The employer had not properly investigated the first two, and labelling one as an ‘assault’ (as opposed to something more neutral) meant the investigation was inherently biased. On the third, the tribunal found the employer had failed to take proper account of the employee’s explanation for refusing to follow the instruction and commented that the reasonableness of it was “questionable”. The tribunal decided the dismissal was unfair.

On appeal, the employer argued the tribunal’s findings were perverse and that it had substituted its own opinion for that of the employer. The EAT rejected the appeal in relation to the assault and safeguarding allegations, but held the tribunal’s conclusions on inadequate investigations and biased labelling were permissible. The EAT also held the tribunal had not properly questioned whether the instruction was ‘reasonable’ and had focused too much on the employee’s reasons for not complying.

However, because the allegations were considered ‘in the round’ by the employer and, therefore, by the tribunal, this made no difference to the overall finding that the employee had been unfairly dismissed.

This case is a useful reminder of the importance of structuring any disciplinary procedures appropriately from the outset. Relying on the total effect of all of the allegations together put the employer in a precarious position when the case reached a tribunal because any allegation which proved to be unfounded was going to make the employee’s dismissal unfair, even if one of them on its own justified dismissal. That’s why a disciplinary termination letter will often refer to a number of allegations warranting dismissal. That way, if one of them fails, the employer can rely on the others.

The case also highlights the need for employers to think carefully about how they describe alleged offences. It seems that neutral descriptions, such as a failure to follow a particular procedure, are the preferred approach. While the employer may have been able to overcome the much criticised use of the word ‘assault’ in this case if it had conducted a thorough and fair investigation, it is interesting to note that the both the tribunal and EAT were prepared to be so critical of the employer on this point.

Sally Nesbitt is a partner in the employment team at Penningtons Manches LLP

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