Physical violence – is dismissal always the solution?

It might be thought that an employee who used violence against one of his colleagues would be facing certain dismissal. However, this is not always the case, as a recent case has made clear.
In Arnold Clark Automobiles Ltd v Spoor, the Employment Appeal Tribunal looked into whether an employee had been unfairly dismissed because of a one-off incident of physical violence, disregarding his exemplary disciplinary and forty two years of service.

What happened

Mr Spoor had been working for Arnold Clark Automobiles Ltd as a Motor Vehicle Technician. On the day in question, he lost his temper with an apprentice over a minor issue and put his hands on the colleague’s neck for a couple of seconds.

In the employer’s disciplinary procedure, employees were warned that they could be dismissed without notice or payment in lieu of notice in cases of gross misconduct. The policy went on to list examples of this, one of which was physical violence.

Later on the day of the incident, Mr Spoor and the apprentice were called in by the Service Manager to discuss what had happened. Mr Spoor admitted that what he had done was wrong and apologised. The Service Manager said that no formal disciplinary action would be taken but he would be sending out a ‘letter of concern’ in line with the employer’s informal procedure.

A copy of the letter of concern was sent, as a matter of course, to the HR department, together with a covering note that read:

“Had some handbags…” [an informal term meaning a petty and inconsequential disagreement] “…between two guys here and we will be issuing Mr Spoor with this letter”.

When the letter arrived in the HR department, they became concerned about the implication of physical violence and decided that a formal investigation of the incident should be carried out. Mr Spoor and colleagues were interviewed and he was suspended pending a formal disciplinary hearing. In a letter sent by HR to Mr Spoor, he was warned that one outcome of the hearing could be dismissal.

The disciplinary hearing took place, with Mr Spoor and HR personnel attending. At the end of the hearing, it was announced that Mr Spoor would be dismissed for gross misconduct as the company said it had a zero tolerance policy towards physical violence and deemed any occurrence of it as wholly unacceptable. The HR manager said it had not been considered appropriate to carry out a review of the context surrounding the incident, including Mr Spoor’s length of service, his exemplary disciplinary record and the very minor nature of the physical violence.
He appealed through the employer’s appeal process but was unsuccessful. He then took his case to the Employment Tribunal, claiming unfair dismissal, breach of contract and failure to pay notice pay.

The Tribunal decision

Mr Spoor’s claims were upheld. The Tribunal said that the investigation that had been carried out by the employer had not been “within the range of reasonable responses open to a reasonable employer in all the circumstances”.

The incident was a very minor example of physical violence as had been concluded by the local management. No attempt had been made to discuss the matter with Mr Spoor’s manager or to gauge his thinking on why he had not taken any formal disciplinary action at the time of the incident. Not to take his view and rationale into account when deciding whether to dismiss was, in the view the of the Tribunal, unreasonable.

The Tribunal also said that no reasonable employer would have taken the decision to dismiss Mr Spoor if due regard had been paid to Mr Spoor’s exemplary previous record and longevity of service.

However, the Tribunal did agree that Mr Spoor contributed to his own dismissal to a 50% degree.

Arnold Clark appealed against the Tribunal’s decision on the grounds that the Tribunal had substituted its own view for that of the company, a ground that has often led to Tribunal decisions being overturned in the past.

The Appeal

The Employment Appeal Tribunal agreed that an incident of physical violence had happened and that it did amount to gross misconduct under the employer’s disciplinary procedures. However, the employer had not taken into account the full circumstances of the case and Mr Spoor’s exemplary disciplinary record.

It also noted that no evidence had been provided to substantiate the claim by the employer that they operated a zero tolerance policy towards physical violence. The appeal against the breach of contract claim was also dismissed but the Employment Appeal Tribunal said that there was no basis for interfering with the Employment Tribunal’s decision on the 50% contribution finding.

On this basis, the appeal was therefore rejected.

Conclusion

Employers need to take care when considering dismissal as a response to misconduct, particularly in cases such as this, when an employee has spent a very long time working for the employer. Local management had taken a decision that the incident did not need formal action and this undermined HR’s standpoint on treating it as gross misconduct.

Although the use of physical violence by an employee might be considered a certain case of gross misconduct (and will be included in many staff handbooks as such), more will be required if a dismissal is to be considered fair, including a thorough investigation and consideration of the incident and the employee’s record.

A degree of consistency will help the employer in the event of a tribunal case; in this instance, the employer had decided not to take any further action, then abruptly changed its mind and pressed ahead with an accusation of gross misconduct and dismissal.

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