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Multiple disciplinary allegations: how do you deal with them?

Dealing with several disciplinary matters at the same time can often be complex. The case involving Pennine Care NHS Foundation Trust v Mundangepfupfu demonstrates the importance of accurately describing any allegation, and dealing with multiple allegations correctly.

The Tribunal

Mundangepfupfu, a nurse who had worked for the Trust for ten years, was dismissed for gross misconduct. The disciplinary process addressed three allegations: an 'assault', a safeguarding issue involving a patient, and a failure to follow a reasonable management instruction. The employer decided to combine the allegations, so that any decision to dismiss would need to be based on all three allegations together, adding up to gross misconduct. The consequence of this is 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.

The opinion of the Tribunal was that the employer had not properly investigated the first two allegations, and that calling one an 'assault' (as opposed to something more neutral) meant the investigation was inherently biased. The Tribunal also found that 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.

The Appeal

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 employer's 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, it decided that because the allegations were considered 'in the round' by the employer, these made no difference to the overall finding that the employee had been unfairly dismissed.

Lessons learned

This case demonstrates the importance of structuring any disciplinary procedures appropriately from the outset. Separate allegations must be assessed on their own merits and not treated as a whole. Disciplinary termination letters 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. Misleading or exaggerated descriptions can lead to an unfair investigation and decision. It seems that neutral descriptions, such as a failure to follow a particular procedure, are the preferred approach.