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When ‘zero tolerance’ leads to dismissal

In Arnold Clark Automobiles Ltd v Spoor, Mr Spoor had 42 years' continuous service and a clean disciplinary record. He had a minor disagreement at work with a colleague, during which Mr Spoor lost his temper and became physically violent, grabbing his colleague's collar. Mr Spoor admitted touching his colleague's neck but denied any violence. He also apologised to his colleague. Mr Spoor's manager treated the incident informally with a letter of concern sent to both parties and copied to HR. However, the HR department noted that the company considers physical violence to be gross misconduct under its disciplinary policy. As a result, it treated the case formally and, following a disciplinary process, summarily dismissed Mr Spoor. It did not take his clean disciplinary record or 42 years' service into account, stating that this was irrelevant as the company adopts a zero-tolerance approach toward physical violence.

Mr Spoor brought claims for unfair dismissal, breach of contract and failure to pay notice pay. The employment tribunal upheld Mr Spoor's claims, finding the investigation undertaken by the company was not within the range of reasonable responses open to it in all the circumstances. In particular, the employment tribunal noted that the dismissing officer considered neither the manager's nor the colleague's views when deciding how serious the incident was. It also found that no reasonable employer could ignore Mr Spoor's length of service and clean disciplinary record when assessing the potential sanction.

The Employment Appeal Tribunal agreed with the employment tribunal's conclusion. It highlighted two points. First, there was no evidence that the company had operated under a zero-tolerance policy in the past. Second, the company's disciplinary policy stated that an employee will “normally be dismissed with immediate effect” in cases of gross misconduct. This suggested the policy allowed for a degree of discretion, which the company did not grant to Mr Spoor.

Takeaway points

Even if an employee's act amounts to gross misconduct, this may not always make summary dismissal fair in the circumstances. Therefore, it is important that employers consider the points below, even when pleading that they adopt a zero-tolerance approach.

  1. Investigation: carry out a thorough investigation. This will ensure that all the circumstances are considered when assessing the appropriate sanction. It is important that an employer considers the opinions of all the parties involved as part of the investigation, and that the employer does not predetermine its decision before undertaking a full investigation. The mere fact that an employer adopts a zero-tolerance approach does not mean that it does not need to investigate a matter on its own merits.
  2. Mitigation: as in the case above, the employee's length of service and previous clean disciplinary record may justify imposing a sanction other than summary dismissal, even if an employer considers the act or omission in question to be gross misconduct.
  3. Consistency: check the approach taken in similar cases. While circumstances will always differ, an employer needs to ensure that its decision is consistent with previous decisions. Unless there are clear distinguishing factors, it will be hard to justify imposing a sanction of summary dismissal where an employer has treated similar cases less severely. Similarly, if it is not evident that an employer has taken a zero-tolerance approach in the past, and the policy provides for a degree of discretion, an employer will find it difficult to dismiss fairly for gross misconduct on this basis.

Helena Rozman is an employment associate at Dentons

Added: 01-08-2017

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