Gross Misconduct = Fair Reason for Dismissal….not always!
An employee with 2 years’ service has unfair dismissal protection, meaning that to be fairly dismissed an employer must follow a fair process and terminate for a fair reason.
Normally, an employer that made a finding of gross misconduct may expect to be able to dismiss an employee; however, as shown in the matter of Arnold Clark Automobiles Ltd v Spoor it is possible for a dismissal for gross misconduct to be unfair!
Mr Spoor had been employed by Arnold Clark Automobiles Ltd (ACA) as a motor vehicle technician for 42 years and had a clean disciplinary record.
In a heated discussion he grabbed an apprentice in the area around collar. In a meeting with his manager the following day he admitted touching the apprentice in the neck area and apologised to the apprentice.
The manager informed Mr Spoor he did not plan to follow a disciplinary process and would instead issue him with a ‘letter of concern’ in accordance with ACA’s informal procedure.
However, when the manager informed HR of the matter (with a cover note stating: ‘Had some handbags between two guys here and we will be issuing [Mr Spoor] with this letter’) HR deemed that the allegation amounted to physical violence requiring a formal disciplinary process.
ACA’s disciplinary rules listed physical violence as an example of gross misconduct and stated that in the event of gross misconduct employees would normally be dismissed immediately and without notice or payment in lieu of notice.
The HR department took the position that ACA had a ‘zero tolerance’ policy towards physical violence and as a result Mr Spoor was dismissed without notice, despite his long service and unblemished disciplinary record. Following his unsuccessful internal appeal he brought a claim for unfair dismissal, wrongful dismissal and breach of contract.
The Employment Tribunal found that:
- the investigation undertaken by ACA was not one that could be said to be within the range of reasonable responses open to an employer – in part due to ACA not considering the views of the manager and apprentice on the seriousness of the matter;
- no reasonable employer would have dismissed Mr Spoor – in consideration of his length of service and clean record; and
- Mr Spoor contributed to his own dismissal to the extent of 50%.
ACA appealed the decision. The EAT dismissed the appeal stating it was clear the dismissal was unfair. In particular, it said the use of ‘normally’ in ACA’s disciplinary rules indicated that ACA could use its discretion, which in the circumstances would have been appropriate, and that there was no evidence that ACA operated a zero tolerance policy towards physical violence.
This case highlights that on its own a finding of gross misconduct does not necessarily mean it is a fair to dismiss the employee.
It is important, as when contemplating all disciplinary sanctions, to carry out a thorough investigation and to consider all of the circumstances – such as any mitigating factors, which could include length of service, disciplinary record, nature and seriousness of the offence, and how you have reacted to similar offences in the past.