It’s a common workplace problem: one ‘incident’, two employees, no witnesses but one killer piece of evidence providing proof of what happened. “It’s an open and shut case of gross misconduct, surely?” said the employer who recently sought our advice on how to dismiss the guilty party. “The other guy had a black eye”.
Most employers would consider fighting or assault to be an act of gross misconduct. However, it does not always follow that dismissal for gross misconduct would be a sanction automatically falling within the band of reasonable responses. (By way of explanation, there is a range of responses to the employee’s misconduct available to an employer, and if by choosing to dismiss the employer has acted as no other reasonable employer would, the dismissal will be unfair. If the area is a grey one where some employers would dismiss but others would not, the dismissal will be fair.) Whilst there may be a seemingly obvious explanation as to why one employee is now sporting a black eye, things are not always what they appear to be. Simply accepting things at face value and failing to make proper enquiries into all the circumstances of the case, including mitigation, may result in a finding of unfair dismissal by an Employment Tribunal.
Take for example this case of the black eye. The complainant alleges that he was minding his own business when the accused punched him. The accused claims that the complainant was winding him up and went to take a swing at him. There are no witnesses and the complainant is not known to the employer as a troublemaker although the accused does have a reputation for having a bit of a temper and ranting. On the face of it, there appears to be no reason to doubt the complainant’s version of events.
However, the truth often lies somewhere in the middle. There may not be any witnesses but an employer should consider interviewing their supervisor or colleagues to get a first-hand account of their behaviour immediately before and after this particular incident – did the complainant appear smug rather than upset having just been punched, or was the accused overheard saying the complainant never saw that coming? What is the relationship like between, or have there been any previous incidents involving, the two employees – could there be a history of bad blood where one is just as culpable as the other? Is there anything else to explain what has happened for example, does the complainant have motive to lie or a stake in the outcome? Or could the accused’s personal circumstances explain why he’s progressed from shooting his mouth off to raising his fist?
The process of considering all the mitigating circumstances (and, in turn, alternative sanctions) really is worth its weight in gold because it may prevent an employer from falling into the trap of assuming that a decision to dismiss will always be fair just because the act of gross misconduct can be proven. In addition and perhaps more importantly, if the dismissed employee then brings a claim of unfair dismissal, the employer’s reasoning will be clear and well documented therefore greatly improving the employer’s prospects of demonstrating to the Employment Tribunal that the dismissal falls within the band of reasonable responses.
If you would like to discuss this further please contact Donna Reynolds.