The Employment Appeal Tribunal (EAT) has upheld a decision that the dismissal of a long-serving employee of Arnold Clark was unfair.
Mr Spoor was a technician with over 42 years’ service with the company. An incident occurred in April 2015 whereby Mr Spoor became involved in an altercation with an apprentice, during which he grabbed the apprentice’s collar.
Mr Spoor’s line manager interviewed both him and the apprentice and decided to take no formal action. He did however issue an informal warning letter and sent a copy of that letter to HR.
Upon receipt of it, an HR representative decided that a formal investigation was required, following which Mr Spoor was suspended pending a disciplinary hearing. Another member of the HR team (Ms Fowler) chaired the hearing and proceeded to summarily dismiss Mr Spoor.
An appeal was held, chaired by a third HR representative (Ms Pheasey), who upheld the decision to dismiss as being fair and reasonable.
At the initial Employment Tribunal (ET), Ms Fowler did not recognise that the wider context needed to be examined when making disciplinary decisions such as the one related to Mr Spoor’s actions. Ms Fowler stated that her decision to dismiss was based on the company’s ‘zero tolerance policy’ towards such conduct.
Ms Pheasey told the ET that she did not differentiate between different forms of physical contact, such as grabbing someone’s collar and more serious forms of violence, and also stated there to be a zero tolerance policy. Ms Pheasey also gave her opinion that conduct such as had been committed by Mr Spoor would inevitably result in dismissal save for exceptional circumstances such as the aggression being a response to sexual or racial harassment.
The ET decided that no reasonable employer would have made the decision to dismiss Mr Spoor having taken into account all the circumstances, most notably his previous employment record.
Arnold Clark appealed on a number of grounds, some of which were accepted by the EAT. However, the EAT did not disagree with the ET’s finding that dismissal was an unreasonable response to what had taken place. The EAT found no evidence of the zero-tolerance policy referred to, and in fact the company’s disciplinary procedure stated only that dismissal would ‘normally’ follow in cases of gross misconduct.
However, the EAT decided that both Ms Fowler and Ms Pheasey had automatically applied the sanction of dismissal because gross misconduct had been established. Having done so without considering the wider context and Mr Spoor’s length of service with the company meant that the decision was unfair.
This case should serve to remind those involved in making disciplinary decisions that dismissal should not be a ‘knee-jerk’ reaction to a finding of gross misconduct, and that reliance should not be placed on a particular practice that is not supported by the wording of the disciplinary procedure.
Of course, in many cases dismissal will be an appropriate and reasonable outcome, but in all cases what is required is an assessment of both what took place and wider issues such as whether the employee shows remorse as well as their previous record and length of service.
If you have any questions on any of the issues raised in the above article, or would like to discuss making a settlement offer to an employee, please contact Seanpaul McCahill.