“Surrounding circumstances” important in dismissal decisions
In Arnold Clark Automobiles Ltd v Spoor the EAT upheld a Tribunal decision that Spoor was unfairly dismissed after he had violently grabbed a colleague by the neck.
Although Spoor had apologised the next day, spoke to his manager about the incident and was told that a letter of concern would be issued rather than formal disciplinary action, HR determined that as there was physical violence involved, there should be a formal investigation. Spoor was suspended, and following a disciplinary hearing he was dismissed for gross misconduct without notice, on the grounds of having committed an act of physical violence in breach of the employer’s “zero tolerance policy”.
At an Employment Tribunal Spoor was however successful in his claims of unfair dismissal, breach of contract and failure to pay notice pay. The ET felt that the use of the word “handbags” in the manager’s report of the incident denoted a trivial or petty disagreement and that there had been insufficient assessment of the degree of the violence. It also pointed to Spoor’s 42 years of service and good character. It found that the investigation was not one that was within the range of reasonable responses open to a reasonable employer and that no reasonable employer would have dismissed Spoor having regard to all the circumstances.
The employer appealed, but the EAT supported the Tribunal’s decision. In addition to the reasons given by the Tribunal, the EAT found that although the physical violence amounted to gross misconduct under the disciplinary procedure, HR had proceeded on the basis that because there was gross misconduct there must be dismissal. There was no evidence produced of the “zero tolerance policy”, and the use of the word “normally” in the policy meant that there could have been discretion in their decision-making. It therefore concluded that due to the Company’s failure to consider all the surrounding circumstances the dismissal of Mr Spoor was unfair.