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Grouping misconduct – a cautionary tale…

04 November 2016 #Employment

In Broecker v Metroline Travel Limited, Mr Broecker was dismissed from his role as a bus driver for misconduct reasons. His employer specified four separate acts of misconduct: two for not following company policy when reporting bus faults and two for making unnecessary journeys after discovering a potential fault.

Despite finding that Mr Broecker’s reports to his employer regarding bus faults amounted to protected disclosures for whistleblowing purposes, the tribunal found that Mr Broecker’s reports were not the principal reason for his dismissal and his dismissal could not be automatically unfair.  The tribunal then went on to identify the reasons the employer could have relied on to justify Mr Broecker’s dismissal.

On appeal, the EAT found that the tribunal’s approach was flawed in two respects. Firstly, the tribunal had not explained whether Mr Broecker was dismissed for making a protected disclosure. Instead it had assessed whether Mr Broecker’s whistleblowing was the principal reason for dismissal, which was the wrong test. Secondly, the tribunal had failed to consider that the employer’s decision to dismiss was based on all four aspects of misconduct. It was not for the tribunal to cherry pick which reasons could have supported a fair dismissal if the employer had grouped all acts of misconduct together when making the decision to dismiss.

This case serves as a useful reminder for employers when relying on a combination of reasons for dismissal. Employers must clearly identify the reasons for dismissal and explain whether each act of misconduct could warrant a dismissal on its own. In grouping acts of misconduct together, employers run the risk of one unfair reason in the group rendering the whole group of reasons unfair.

For further information or support with whistleblowing or unfair dismissal claims please contact our employment law team on 

For useful factsheets, policies or checklists on whistleblowing, please visit  


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