In Westlake v ZSL London Zoo, Ms Westlake (W) and Ms Saunders (S) were keepers in the mammals section of London Zoo. Mr Davies (D) was a lead keeper. S was a former girlfriend of D. At the time of the Zoo’s Christmas party W was going out with D. Early in the evening of the Christmas party, while W was in the toilet, she overhead S saying that she looked better than W and asking other women “have you seen the state of her?” W was subsequently involved in an ‘altercation’ with S at the event. An argument started over W’s interaction with D when he was going out with S. W and S gave two different versions of the events and in particular who struck the first blow. There were no witnesses, but what was clear was that S hit W in the face and W blindly hit out at S without remembering that she had a glass of wine in her hand, which caused a short but deep gash to S’s cheek.

London Zoo conducted an investigation, which included interviewing W and S, and taking statements from a number of people who had been at the party. But no eye witness could provide evidence about the critical few moments when the fight began and nobody could corroborate either W’s or S’s evidence of who struck the first blow. W was dismissed and S was given a final warning. On balance the disciplinary panel did not accept that S had hit W first or that W’s blow was a reflex action.

An employment tribunal found W’s dismissal unfair. The tribunal concluded that no reasonable employer would have reached the decision that the entire responsibility for the incident should be placed at W’s door and that S was not blameworthy. On the evidence available the only reasonable conclusion was that the incident could have been started either by W hitting S with a glass or S hitting W on the jaw. As the employer could not determine who had started the fight, had it chosen to dismiss both W and S, or impose a final warning on both, then that could not have been faulted. But that was not the case and the differentiation between the treatment of the two women was unfair because it was not supported by a reasonable analysis of the facts. However, W would not receive any compensation since if S had been dismissed as well, there would have been a 100% Polkey reduction.

The case is a reminder of the need for consistency of treatment where it is supported by a proper analysis of the facts as well the need for employers to recognise the problems that could arise at the Christmas ‘do’. Nobody wants to be a ‘kill-joy’, but employers may want to consider issuing a guide to employees attending a work-related event pointing out the need for good behaviour and the dangers of drinking too much alcohol.

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