Chris Moses: When does fighting at work not count as gross misconduct?

Most employers would recognise acts of fighting and aggression as justifiable causes for dismissal without notice.

Indeed most grievance and disciplinary procedures state that violence, fighting and other acts of aggression would constitute gross misconduct, and could result in dismissal.

A well-established mantra amongst employers has been that regardless of whatever went on before, there is never a good reason for throwing the first punch, and that any member of staff who behaves in such a manner is not welcome at work.

However this guiding principal has been thrown into doubt following a recent decision at the Employment Appeal Tribunal (Arnold Clark Automobiles v Spoor).

The employee, Mr Spoor, had clocked up forty two years of exemplary conduct with his employer before he lost his temper with a colleague, and grabbed him by the throat. Mr Spoor immediately realised his mistake and apologised.

As a consequence, his line manager issued him with a letter of concern, which constituted an informal warning in the opinion of both parties.

Once the company’s HR Department became aware of the incident, they decided to take a different approach and immediately suspended him on full pay pending formal disciplinary hearing.

At that hearing Mr Spoor was found guilty of gross misconduct and dismissed with immediate effect.

The reasons given by the employer were that it had a zero tolerance to any form of aggression in the workplace, and that the dismissal was fair and followed the company’s formal disciplinary procedure.

Mr Spoor subsequently claimed unfair dismissal at the employment tribunal, who found against Arnold Clark on two counts.

The first was that a full investigation had not been conducted, and the second was that in the judge’s opinion the employer’s actions were outside of what would be considered a reasonable response under the circumstances.

Arnold Clark appealed, but again the outcome was that the employer had failed to take into account the employee’s long exemplary conduct, and that there was no evidence of a zero tolerance policy.

The key issue for employers is not to slavishly adhere to accepted procedures, but to take into account the specific merits and circumstances of each case when considering the outcome of a disciplinary hearing.

The employer’s defence was also not helped by the initial actions of the line manager who effectively dismissed the problem with an informal warning.

This enabled the claimant to demonstrate an inconsistent approach to disciplinary action within the company, and also the fact that those who decided on the dismissal were out of touch with the circumstances in the actual workplace.