The recent EAT judgment in Arnold Clark Automobiles Ltd v Spoor contains some useful reminders for employers when contemplating what appears to be a straightforward gross misconduct termination.

Spoor was a motor vehicle technician who had 42 years’ exemplary service. He went to help an apprentice who was having difficulty in operating a printer, but lost his temper because the apprentice was not listening to him and grabbed him with both hands in the vicinity of his neck. The apprentice stated that Spoor ‘may have caught his throat but he did not have him by the throat’. Spoor apologised, confirming that he knew that he was in the wrong and should not have conducted himself in the way he did. They shook hands and both returned to work.

Initially, the incident was treated by their manager as “handbags between two guys” and that a letter of concern would suffice, but the HR department intervened. In their view, the incident amounted to physical violence and was potentially gross misconduct as the Company adopted a “zero tolerance” approach towards physical violence.

Spoor brought unfair dismissal proceedings against the company which was upheld at the Employment Appeal Tribunal (EAT).

Notable comments by the ET and EAT included:

 

  • Although physical violence that amounted to gross misconduct under the Company’s disciplinary procedure, it did not follow that in any case of gross misconduct the individual must to be dismissed. The judge pointed out that the use of the word ‘normally’ in the disciplinary procedure indicated that the employer had ‘a discretion to exercise’.
  • There was no evidence that the Company actually did operate a zero tolerance policy towards physical violence. Rather, the wording of its disciplinary procedure suggested otherwise.
  • There was a failure on the Company’s part to acknowledge that allegations such as these must be seen and taken in the context of all of the surrounding circumstances at the time of the incident.
  • The Company failed to undertake any assessment as to the level or degree of physical violence.
  • No account was taken of Spoor’s 42 years’ exemplary service

 

Adelle Hutton, HR Consultant at EML, comments:

 

“This case is a useful reminder to employers that even when they are satisfied that an employee is guilty of gross misconduct, dismissal does not automatically follow. Few disciplinary policies will state that an act of gross misconduct will result in dismissal. Most use terms such as ‘may’ or ‘could’ (or in this case ‘would normally’), meaning there is an element of discretion on the part of the employer. In such cases, tribunals expect employers to take into account seriousness, context, mitigating factors (e.g. length of service and prior disciplinary record) and possible alternative sanctions. Even where a policy states that a breach of certain rules will result in termination, that doesn’t give the employer carte blanche to dismiss. The employer will still have to satisfy the tribunal that the Burchell principles have been followed (i.e. genuine belief based on reasonable grounds following a reasonable investigation) and that the decision to dismiss fell within a “band or range of reasonable responses”.

 

If you are an employer that is faced with a disciplinary situation that could result in dismissal, please contact one of our HR consultants for an initial discussion without charge or obligation.