Consider allegations separately in gross misconduct cases

Disciplinary cases rarely involve just one issue. Very often, an employee faces several separate allegations at the same time. When this happens, it’s vital that you deal with each allegation individually rather than treating them as one overall problem.

Why? Because separating allegations – and reaching a clear conclusion on each – gives employers a much stronger position if a dismissal is later challenged as unfair. This point was reinforced by the Employment Appeal Tribunal (EAT) in Barchester Healthcare Ltd v Tayeh.

Barchester Healthcare Limited v Tayeh

InBarchester Healthcare Ltd v Tayeh The EAT explained that tribunals must look at whether an employer treated multiple charges as:

• cumulative (added together to justify dismissal), or
• stand-alone (each one capable of justifying dismissal on its own)

If allegations are treated cumulatively and one significant charge is not supported by reasonable evidence, the whole dismissal is likely to be viewed as unfair.

However, if each allegation is presented as a separate reason for dismissal – and at least one is properly established – the dismissal can still be fair.

For this reason, disciplinary officers should:

• make clear factual findings on each allegation
• explain whether each is proven and why
• state what level of disciplinary outcome each would justify on its own

This approach effectively gives employers more than one opportunity to show that dismissal was reasonable.

The lesson from Chand v EE

In Chand v EE, Ms Chand was dismissed for gross misconduct based on four separate incidents, each described by the employer as fraudulent.

The employment tribunal found there was no reasonable basis for concluding that any of the incidents involved fraud. Despite this, it still decided the dismissal was fair because one incident amounted to a serious breach of company policy.

The EAT disagreed and found the dismissal unfair. It explained that:

• the reason for dismissal is what the employer actually relied on at the time – not what it could have relied on
• here, the employer dismissed for fraud based on all four allegations taken together
• once the fraud findings were unsupported, the dismissal could not stand
• the tribunal was wrong to reframe the case around breach of policy after the fact.

The disciplinary officer had made two key mistakes: combining the allegations into one overall reason for dismissal and focusing on fraud as the basis for the decision. Even though one allegation might have justified dismissal on its own, the way the decision was framed meant it could not be separated and saved.

Further reading

• Disciplinary procedure – Acas
• How to handle disciplinary hearings if the employee is off sick – Hunter Law
• When to call the police in a disciplinary process – 7 steps – Hunter Law

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