Cumulative incidents
When is it safe to rely on
cumulative incidents to justify a dismissal?
Anita Mishra
Partner
Clarkslegal LLP
The Diverse Law Firm
Cumulative incidents
• Gross misconduct dismissals – no prior
warning
• Misconduct dismissal – prior warning
The Diverse Law Firm
Gross misconduct
Robinson v Combat Stress [2014]
UKEAT/0310/14
• Car park incident
• Inappropriate sexualised
behaviour/sexual assault
• One to one incident
The Diverse Law Firm
Robinson v Combat Stress
The EAT upheld the Claimants appeal
finding:
“the reference to the reason…is a reference to the actual
reason. Where, therefore, an employer has a number of
reasons which together form a composite reason for
dismissal, the tribunal’s task is to have regard to the whole
of those reasons in assessing fairness.”
“the tribunal looked at what it would have been
reasonable and fair for an employer to have thought, not
whether it was what it actually thought and whether
having regard to that reason dismissal was reasonable.”
The Diverse Law Firm
s.98 Employment Rights Act 1996
“In determining…whether the dismissal of an employee
is fair or unfair, it is for the employer to show –
a) The reason (or, if more than one, the principal reason) for
the dismissal, and
b) That it is either a reason falling within subsection (2) or
some other substantial reason of a kind such as to justify
dismissal...”
Subsection 2 being: capability/qualifications, conduct,
redundancy or statutory restriction
In the Robinson case, the EAT cautioned against putting
any gloss on this wording.
The Diverse Law Firm
Stand alone reasons vs. cumulative reasons
Barchester Healthcare v Tayeh [2012] UKEAT 0281/11
“If the charges were cumulative, in the sense that all of them
together formed the principal reason for dismissal, it would
be fatal to the fairness of the dismissal if any significant
charge were found to have been taken into account without
reasonable grounds: see Smith v City of Glasgow DC [1987]
IRLR 326”
“If, however each charge stood on its own, for example
independent instances of gross misconduct such that the
employer would have dismissed for any of them without the
other, then they would require separate consideration in
determining whether it was reasonable to dismiss.”
The Diverse Law Firm
Evidence
Hence, the key evidence is the dismissal
letter.
Often, the most important piece of evidence
in an unfair dismissal case.
The Diverse Law Firm
Evidence
Tips when drafting gross misconduct dismissal letters:
• Put aside at first what may or may not be gross misconduct
- consider what the actual factual reasons for dismissal
are.
• Set out very clearly what the factual basis for dismissal is,
what you accept and don’t accept took place.
• Consider, is there a stand alone reason or a cumulative
reason for dismissal?
• Then explain how you interpret the facts, detailing your
reasons for dismissal and confirming how the reason for
dismissal constitutes gross misconduct.
The Diverse Law Firm
Evidence
Tips when drafting gross misconduct dismissal letters (cont’d):
• Saying, “in the circumstances, I find you guilty of gross
misconduct” is not good enough.
• Explain your thought processes.
• Ask yourself, why is it that the company can no longer
employ this person in any capacity?
• As the dismissing manager, keep control over the dismissal
letter. Do not let others draft it for you without your
input/understanding. You will be the one explaining the
letter to the Employment Tribunal!
The Diverse Law Firm
Misconduct dismissals (following warnings)
Way v Spectrum Care [2015] EWCA Civ 381 – Court of
Appeal
• Final written warning December 2010 for breaching corporate
policy on appointing member of staff whom he already knew.
• In 2011, breach of corporate computer usage policy - sending
inappropriate emails. Although the email content did not
constitute gross misconduct, the employee was dismissed given
he was on a live final written warning for misconduct.
• The Court of Appeal approved the leading case of Davies v
Sandwell Borough Council [2013] EWCA Civ 135:
“..it is legitimate for an employer to rely on final warning, provided
that it was issued in good faith, that there were at least prima facie
grounds for imposing it and that is must not have been manifestly
inappropriate to issue it.”
The Diverse Law Firm
Misconduct dismissals (following warnings)
Wincanton Group plc v Stone and another [2013] IRLR
178 EAT
• Mr Stone was on a first written warning but committed a
further disciplinary offence that might normally attract a
final written warning. However, employer considered that
the previous warning tipped the balance in favour of
dismissal
• Mr Gregory, a driver doing 95 % driving duties, was also
on a first written warning but was disqualified for drink
driving. Because of the earlier warning, it did not look for
alternative work, despite saying that it would.
The Diverse Law Firm
Misconduct dismissals (following warnings)
Wincanton Group plc v Stone and another [2013] IRLR
178 EAT (cont’d)
The ET found both men had been unfairly dismissed. The EAT
gave some guidance on the effect of valid warnings on the
fairness of conduct dismissals:
• A final written warning implies that further misconduct of
whatever nature will be met with dismissal, unless the
contract of employment says otherwise or the
circumstances are exceptional.
The Diverse Law Firm
Misconduct dismissals (following warnings)
• Wincanton Group plc v Stone and another [2013] IRLR 178
EAT (cont’d)
• Although an ET should not reopen an earlier warning
except in limited circumstances, it may take into account
the factual circumstances leading to the earlier warning
when deciding on the sanction for a later offence.
• Leaving aside cases where there are final written warnings,
a degree of similarity between earlier and later incidents
may make dismissal fair. Equally, dissimilarity between the
incidents may make dismissal unfair.
• If an employee challenged a warning on appeal, that
should be taken into account in the case of a later
dismissal based on the existence of that warning.
The Diverse Law Firm
Contact details
Anita Mishra
[email protected]
020 7539 8042
www.clarkslegal.com
The Diverse Law Firm