If an employer has a zero-tolerance policy, and the employee breaches this, can the employer fairly dismiss for gross misconduct without considering any mitigating factors?
In the case of Arnold Clark Automobiles Ltd v Spoor, Mr Spoor had 42 years’ service and a clean record. He lost his temper with a colleague, and admitted grabbing him, but denied any physical violence.
Mr Spoor apologised to his colleague, and the incident was dealt with informally by their manager. However, HR decided that a formal investigation was required, as there was an allegation of physical violence. The company’s disciplinary policy included physical violence as an example of gross misconduct.
Mr Spoor was summarily dismissed following a disciplinary process, and his internal appeal was unsuccessful. The company’s position was that Mr Spoor’s long service and prior clean record were not relevant, because they took a zero-tolerance approach towards physical violence.
Mr Spoor brought claims for unfair dismissal and breach of contract in the Employment Tribunal, and his claims were upheld. The Tribunal found that the company’s investigation was outside the range of reasonable responses open to a reasonable employer (the views of Mr Spoor’s managers as to the seriousness of the incident had not been sought or taken into account). The Tribunal also held that no reasonable employer would have dismissed Mr Spoor, ‘having proper regard to all of the circumstances including his previous record’.
The company appealed to the Employment Appeal Tribunal (EAT), unsuccessfully. The EAT found that whilst there was physical violence which amounted to gross misconduct under the company’s policy, there was no evidence that the company did actually operate a zero-tolerance policy on physical violence. The EAT also noted that the company policy said an employee will “normally be dismissed with immediate effect” in cases of gross misconduct, but this suggested that the company had a degree of discretion, which they failed to exercise in Mr Spoor’s case.
The lesson for employers is that even if you say you have a zero-tolerance policy, it is still important for you to carry out a thorough and reasonable investigation and consider all of the circumstances, including mitigating factors. It is also important to make sure that employees are treated consistently in similar situations (see our previous article on the importance of consistency here).
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).