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Failure to take circumstances of assault into account made dismissal unfair

The EAT hold that the dismissal of an employee for grabbing a colleague was unfair because the employer failed to have regard to all the surrounding circumstances and the employee’s exemplary 42-year record.

In Arnold Clark Automobiles Ltd v Spoor, Spoor (S) had a disagreement with an apprentice, Chapman (C), about a printer which was malfunctioning.  C disagreed with S’s suggested solutions. S momentarily lost his temper, accused C of not listening to him and, using both hands, grabbed C in the vicinity of his neck.  When interviewed directly afterwards, S said that he may have caught C’s throat but denied any physical violence.  The next day, the service manager discussed the incident with S and C. C confirmed that he knew that he was in the wrong, S and C shook hands and both returned to work.

The service manager sent a letter to the workshop manager and HR stating that there had been “some handbags” between two guys and S would be issued with an informal ‘letter of concern’. However, HR considered that S’s actions amounted to physical violence. Following a disciplinary hearing, S was dismissed for gross misconduct, i.e. physical violence, which was unacceptable and could not be tolerated.

An ET found that no reasonable employer would have dismissed S having proper regard to all the circumstances of the case. The ET took into account that S had over 42 years’ service and had an exemplary disciplinary record, but the employer insisted that his length of service and previous good character were not matters to which it should have “any regard whatsoever.” The employer further refused to acknowledge that allegations such as these must be seen and taken in the context of all the surrounding circumstances at the relevant time and did not consider it appropriate to undertake any assessment as to the level or degree of physical violence.

The employer appealed, arguing that the ET had substituted its own view for that of the employer. The EAT rejected the appeal. While physical violence amounted to gross misconduct under the employer’s disciplinary procedures, the procedure expressly stated that gross misconduct would “normally” result in dismissal, which indicated that the employer has a discretion to exercise. Yet, the employer failed to have regard to all the surrounding circumstances and S’s exemplary disciplinary record over 42 years.

The case serves as yet another reminder that Page 28 of the Acas Guide on Discipline and grievances at work sets out the relevant circumstances which should be taken into account when determining what disciplinary action to take. These include, among other things, the employee’s disciplinary record (including current warnings), general work record, work experience, position, length of service and any special circumstances which might make it appropriate to adjust the severity of the penalty.

The aim of this update is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided, contact us for further details.  Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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