Love it or loathe it, Top Gear, often criticised for its politically incorrect commentary, is the most widely watched factual television programme in the world. However, its successful run may (as we all know!) be coming to an end following a row where its presenter, Jeremy Clarkson, punched the producer of the show, allegedly because no hot food was provided following a day’s filming. Following an internal investigation in March, it was confirmed that his contract would not be renewed. In this blog post, I set out some tips for employers when dealing with misconduct involving violence and fighting.
1. In order to dismiss fairly for violence or fighting, an employer will need to meet the test set out in British Home Stores v Burchell 1980 ICR 303, EAT, of genuine belief on reasonable grounds after reasonable investigation that the employee was guilty of misconduct.
2. A failure to investigate or interview the participants in a fight will not necessarily be unfair, for example if the fight took place in the office in front of a manager. Nor is it necessary to interview everyone in the vicinity where large numbers were involved. However, if only a few employees were present, an employer should usually question all of them, particularly where there are conflicting accounts about what happened. Where it is unclear following a reasonable investigation who started the fight, it may be possible depending on the circumstances for an employer to sack all the participants fairly.
3. Fighting or violence at work is usually considered as gross misconduct justifying dismissal without prior warning. Ideally, a dismissal will be supported by a clear rule in the disciplinary policy that a fight will constitute gross misconduct. However, even where there is no such rule, serious cases of fighting or violence are likely to justify dismissal.
4. However, an employer should not assume that it can rely on an express disciplinary rule to dismiss fairly for fighting. A tribunal will still ask whether the decision to dismiss was reasonable in all the circumstances. Factors a tribunal may take into account in determining reasonableness include:
a. whether a proper procedure was followed;
b. the consistency of the punishment (does the employer treat employees accused of fighting consistently);
c. health and safety (fighting that takes place near machinery or dangerous equipment will be treated very
d. the status of the parties (attacks on supervisors or managers by subordinates will usually result in a fair
dismissal but not inevitably so, for example in the case of London Borough of Ealing v Goodwin EAT
121/79 the dismissal of a disabled road-sweeper with 23 years’ unblemished service, who had struck his
supervisor following a long running dispute, was held to be unfair);
e. mitigating circumstances (provocation and whether the employee’s response to it was proportionate, long
service and good conduct should always be taken into account); and
f. threats of violence (where contemplating dismissal for threats of violence, one factor an employer
should take into account is the atmosphere of fear and intimidation caused by the threat, the employee’s
attitude and any apology offered afterwards).
5. Where a fight takes place outside of work, a dismissal may still be fair where it affects working arrangements (for example, where it causes an atmosphere of discord and fear in the workplace, or where there is an indication that the employee may be a threat to colleagues or clients at work).
Jeremy Clarkson may be able to argue that there were mitigating circumstances, such as his long service and the fact that at the time he believed he had cancer (he was subsequently given the all clear), meaning he should not have been dismissed. On the other hand, the BBC would have a good argument that the dismissal was justified given that he was already on a final warning and the assault was apparently unprovoked.
The BBC might also feel, given public pressure to sack Jeremy Clarkson, that regardless of any mitigating factors, it had no option but to sack him. Where there is third party pressure, for example from a valued customer who threatens to withdraw their custom unless an employee is dismissed, or from a third party who holds influence over the employer, the employer may also be able to dismiss fairly for “some other substantial reason”. There need not be a direct instruction from a third party to dismiss an employee but there would need to be some evidence pointing to an ultimatum having been given to the employer (providing, of course, that such ultimatum is not discriminatory). A Tribunal would also consider whether it was reasonable to dismiss as a result of the third party pressure and in doing so would look to see that the employer considered whether there would be an injustice to the employee and, if so, ways it could alleviate that injustice.
Finally, where an employee’s conduct is being considered by an external body or is being investigated by the police, an employer will need to consider whether to press ahead with their own investigation or wait for the outcome of the external investigation. This dilemma is considered in Rob Lewis’ blog here.