Advice & Information

Dismissal for gross misconduct is not always fair

Date: January 08, 2018 by IDU

We all know the rules and usually, when a finding of gross misconduct is made, an employer would expect to be able to dismiss the offending employee and (depending on the seriousness of the breach) most of their workmates and colleagues would probably agree.


However, dismissal is not always an appropriate sanction, as the recent case of Arnold Clark Automobiles Ltd v Spoor demonstrates. Mr Spoor was a motor vehicle technician who had 42 years’ continuous service with his employer. Up until the incident in question, Mr Spoor had an exemplary disciplinary record. He became involved in a minor disagreement at work with an apprentice, during which Mr Spoor lost his temper and grabbed the apprentice by the collar.


Mr Spoor admitted touching the apprentice’s neck when interviewed by his manager and the morning after the incident Mr Spoor also 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 the employer’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’.


However, the HR department took a different view of the situation and decided that a formal investigation was required. HR were mindful that physical violence was one of the examples of gross misconduct in the employer’s disciplinary rules. The rules also stated that employees would normally be dismissed immediately, without notice or pay in lieu of notice, in cases of gross misconduct.


Mr Spoor was therefore suspended pending a disciplinary hearing and he was told that a potential outcome of the hearing was his dismissal without notice. Following that disciplinary hearing, the employer took the view that there was a zero tolerance policy towards physical violence and dismissed Mr Spoor for physical violence towards another employee, despite his long service and clean record. Mr Spoor’s internal appeal was unsuccessful. He therefore brought a claim for unfair dismissal, wrongful dismissal and breach of contract.


Employment Tribunal
The Employment Tribunal upheld Mr Spoor’s claims. It took the view that the investigation undertaken by the employer was not within the range of ‘reasonable responses’ open to a ‘reasonable employer in all the circumstances’, in particular because neither the views of the manager or the apprentice were taken into account in determining the seriousness of the incident.


The Tribunal found that no ‘reasonable employer’ would have dismissed Mr Spoor, taking into account all of the circumstances including his previous record. However, the Employment Tribunal found that Mr Spoor had contributed to his own dismissal to the extent of 50%. His employer appealed this decision.


Employment Appeal Tribunal (EAT)
The Employment Appeal Tribunal dismissed the employer’s appeal and stated that it was clear that the dismissal was unfair. Whilst, it accepted that there was physical violence that amounted to gross misconduct under the disciplinary procedure, the EAT pointed out that the use of the word ‘normally’ in the disciplinary procedure indicated that the employer had discretion over whether or not to dismiss an employee.


In particular, the EAT found that the employer had erred in not having regard to all the circumstances, including Mr Spoor’s exemplary record over 42 years. In addition, there was no evidence that the employer did indeed operate a ‘zero tolerance policy towards physical violence’ as had been suggested was the case. The EAT did, however, uphold the contribution finding of 50%.


What this case shows is that, just because an employee is found guilty of an act of gross misconduct, this will not necessarily be enough to render any dismissal fair. The employer must also carry out a thorough investigation and consider all of the circumstances surrounding the incident, including the employee’s length of service, disciplinary record, seriousness of the offence and the approach taken in previous similar cases, before making a decision to dismiss.


If the employer fails to do so, as in this example, the dismissed employee may have a compelling case for unfair dismissal, wrongful dismissal and/or breach of contract.