Welcome back to your weekly update just what you need to cheer you up!

The case we are discussing today shows the possible problems when common law and statute interact with gross misconduct. Particularly on the question of summary dismissal for gross misconduct. Summary dismissal is a common law concept which has evolved in the context of wrongful dismissal.

There can be cases, however, where the fairness of such a dismissal is questioned in a statutory action for unfair dismissal. You can, as you will see, have a case where the dismissal is unfair even though there was gross misconduct.

The facts of the case:

Mr Spoor was employed by Arnold Clark Automobiles Ltd (ACA) as a motor vehicle technician. He had been employed for 42 years and had an exemplary disciplinary record. On one occasion he became dissatisfied with the work of an apprentice. He lost his temper and grabbed the apprentice in the collar area. He admitted grabbing the apprentice but denied any violence.

The morning after the incident Mr Spoor apologised to the apprentice. His manager told him that it would be treated informally with a ‘letter of concern’ (in accordance with ACA’s informal procedure). The manager sent the letter to the HR department along with a covering note stating that there had been ‘some handbags between two guys here’.

ACA’s disciplinary procedure stated that employees could be dismissed without notice in cases of gross misconduct. Examples of gross misconduct included physical violence.

When HR was informed, it was deemed to be gross misconduct and treated formally. Mr Spoor was summarily dismissed. The HR manager insisted that the firm had a zero-tolerance policy on violence. Accordingly, the surrounding circumstances and Mr Spoor’s work record were irrelevant.

Mr Spoor brought claims in the ET for unfair dismissal, breach of contract and failure to pay notice pay.

The question is:

Can an employee be dismissed for gross misconduct without notice when there has been no proper consideration of the surrounding circumstances and mitigating factors?

The ET found that the use of the word “handbags” was a local colloquialism for a petty and insignificant disagreement. It found that the investigation undertaken by ACA was not in the range of reasonable responses open to a reasonable employer. It also stated that no reasonable employer would have dismissed Mr Spoor, having regard to the surrounding circumstances. In particular his previous work record. The ET found that Mr Spoor contributed to his own dismissal to the extent of 50 per cent.

ACA appealed. The EAT dismissed the company’s appeal. It held that unfair dismissal law requires that all the facts and mitigatory factors should be considered even if gross misconduct is established.

This finding was supported by two factual matters. Firstly, that there was no evidence that the company had operated a no tolerance policy in the past. Secondly, in ACA’s disciplinary policy it said that ‘you will normally be dismissed with immediate effect’ in cases of gross misconduct. The word normally showing that there was some discretion built into the procedure.

The takeaway point:

You would be forgiven for thinking that physical violence against a colleague would automatically amount to gross misconduct. But this decision reminds us that it is not enough for a fair dismissal. Employers need to carry out a thorough investigation and consider all the surrounding circumstances, including any mitigating factors such as the employee’s record before making a decision to dismiss

If you need legal representation or simply some legal advice, contact us today.