In Arnold Clark Automobiles Ltd v Spoor (UKEAT/0170/16/DA), the Employment Appeal Tribunal had to decide whether an employee had been unfairly dismissed where he had been continuously employed for over 40 years and had an exemplary disciplinary record but had been physically violent towards a colleague.
Mr Spoor was employed by Arnold Clark Automobiles Ltd (ACA), which was an automotive retailer with over 200 branches in the UK. It had approximately 10,000 employees and 15 HR staff. Mr Spoor was employed in the Penn Street, Newcastle branch, where he was a motor vehicle technician with over 42 years' continuous service with ACA.
There was a minor disagreement at work between Mr Spoor and an apprentice, during which Mr Spoor lost his temper and grabbed the apprentice in the collar area. He admitted grabbing the apprentice but denied any physical violence. ACA's disciplinary procedure stated that employees could be dismissed without notice or payment in lieu of notice in cases of gross misconduct and the examples of gross misconduct given included physical violence.
The morning after the incident, Mr Spoor apologised to the apprentice. Mr Spoor's manager told him that no formal disciplinary action would be taken but he intended to issue a "letter of concern" in accordance with ACA's informal procedure. The manager sent a copy of the letter to the HR department, with a covering note stating "Had some handbags between two guys here and we will be issuing [Mr Spoor] with this letter". HR decided that a formal investigation was required. Mr Spoor was suspended pending a disciplinary hearing and he was told that a potential outcome of the hearing was his dismissal without notice.
Following a disciplinary hearing, Mr Spoor was dismissed without notice for physical violence towards another employee. His internal appeal was unsuccessful. He brought claims in the ET for unfair dismissal, breach of contract and failure to pay notice pay.
Employment tribunal decision
The ET found that the use of the word "handbags" was a local colloquialism for a petty and insignificant disagreement. It upheld Mr Spoor's claims and found that the investigation undertaken by ACA was not one that could be said to be within the range of reasonable responses open to a reasonable employer in all the circumstances. Further, no reasonable employer would have dismissed Mr Spoor, having proper regard to all of the circumstances including his previous record. The ET found that Mr Spoor contributed to his own dismissal to the extent of 50 per cent.
ACA appealed on the grounds that the ET had substituted its own view for that of ACA. It also contended that the ET had reached a perverse decision.
The Employment Appeal Tribunal (EAT) dismissed the appeal. There had been physical violence that amounted to gross misconduct under ACA's disciplinary procedures but ACA had failed to have regard to all the surrounding circumstances and Mr Spoor's exemplary disciplinary record over 42 years. There was no evidence that ACA operated a zero tolerance policy towards physical violence (as it had argued at the ET hearing). The appeal against the breach of contract claim was also dismissed and the EAT held there was no basis for interfering with the contribution finding of 50 per cent.
Although most people would agree that physical violence against a colleague falls squarely within gross misconduct, this decision reminds us that is not enough for a fair dismissal: employers must carry out a thorough investigation and consider all the circumstances surrounding the incident and the employee's record before making a decision to dismiss.
It is also a reminder that an employer should be consistent in its treatment of an incident; it cannot have helped ACA's case that it originally decided not to take any formal action, then changed course and dismissed Mr Spoor for gross misconduct.