Labour & European Law Review Weekly Issue 514 05 April 2017
When deciding whether a dismissal is unfair, tribunals have to consider whether “in the circumstances” the employer acted reasonably or unreasonably. In Arnold Clark Automobiles Ltd v Spoor, the Employment Appeal Tribunal (EAT) held that the employer had failed to consider all the circumstances of the case, including the employee’s exemplary disciplinary record.
Mr Spoor, who had worked for the company for over 40 years, momentarily lost his temper and allegedly put his hands around the neck of an apprentice for a couple of seconds. Mr Spoor admitted that he may have “caught his throat” but denied having him “by the throat”.
The apprentice reported the matter to a manager who issued Mr Spoor with an informal “letter of concern”. Mr Spoor apologised, the two men shook hands and went back to work. However, when the manager lodged the letter with Human Resources (HR), it was decided that a formal investigation was needed. After a disciplinary hearing, Mr Spoor was summarily dismissed for physical violence which was listed in the company disciplinary policy as an issue of gross misconduct.
The company said that it operated a “zero tolerance policy” towards physical violence, and it was not therefore appropriate to undertake any assessment as to the level or degree of physical violence that Mr Spoor had used. Nor was it appropriate to take into account his exemplary disciplinary record.
Mr Spoor claimed unfair dismissal, breach of contract and failure to pay notice pay.
The tribunal found that the investigation undertaken by the company was not within the range of reasonable responses open to a reasonable employer in all the circumstances, not least because no one spoke to the managers involved so that they could give their assessment of the seriousness of the incident.
The tribunal also found that no reasonable employer would have dismissed Mr Spoor given all the circumstances including his previous record, although it found that he contributed to his own dismissal by 50 per cent.
The company appealed on the basis that the tribunal had substituted its own view for that of the company (or at the very least, the views of other managers); and that it failed to make a finding as to whether his behaviour amounted to gross misconduct.
Although it found errors in the tribunal decision and agreed that there was physical violence that amounted to gross misconduct, the EAT dismissed the appeal.
Firstly, it held that there was no evidence that the company operated a zero tolerance policy towards physical violence. Indeed, the disciplinary procedure contradicted that assertion in section 5.1 where it stated that an employee would “normally” be dismissed with immediate effect.
According to the EAT, the use of the word “normally” indicated that the company had a discretion that it could exercise but had failed to do so in this case. In addition, the company should have had regard to “all the circumstances” which included Mr Spoor’s exemplary record.
Although the company argued that Mr Spoor contributed 100 per cent to his own dismissal, the EAT held that there was no basis for interfering with the contribution finding of 50 per cent.
This case shows that employers must carry out a thorough investigation and carefully apply their disciplinary policy. They must take into account all of the circumstances, including the employee’s record, before making any decision to dismiss. A failure to do so may render the decision unfair.