Arnold Clark Automobiles Ltd v Spoor

A contractual disciplinary provision stating that an employee will normally be summarily dismissed for gross misconduct preserves an employer’s discretion. Even where physical violence falls within gross misconduct, a dismissal may be unfair if the employer treats dismissal as automatic and fails to consider all the surrounding circumstances, including a long and exemplary disciplinary record.

An Employment Tribunal does not substitute its own view merely by scrutinising the actual decision-makers’ reasoning under the reasonable-employer test. Guidance concerning improper Human Resources influence does not apply where Human Resources staff were themselves the decision-makers.

The claimant, a motor vehicle technician with over 42 years’ continuous service and an exemplary disciplinary record, was summarily dismissed after grabbing an apprentice near the neck during a workplace incident. The employer’s procedure listed physical violence as an example of gross misconduct and stated that summary dismissal would normally follow.

The Employment Tribunal held the dismissal unfair and found the associated breach of contract and notice-pay claims well founded. It reduced compensation by 50% for contributory conduct. The employer appealed, alleging substitution of judgment, misapplication of authority concerning Human Resources involvement, inadequate reasons on gross misconduct, perversity, and excessive failure to reduce for contribution.

1. Appeal dismissed. The Employment Appeal Tribunal held that the claimant’s conduct was physical violence and amounted to gross misconduct under the employer’s disciplinary procedure. The Tribunal’s decision was unclear on that point, but the EAT could determine it without remission.

2. The Tribunal had not impermissibly substituted its own assessment for that of the employer. It scrutinised the decisions of the actual decision-makers by applying the test whether no reasonable employer would have dismissed in the circumstances.

3. The Tribunal had misapplied Ramphal v Department for Transport [2015] IRLR 985. Its principle concerning inappropriate Human Resources influence did not apply because the Human Resources officers were the decision-makers. That error did not alter the result.

4. The disciplinary procedure did not impose automatic dismissal for every physical assault. Section 5.1 provided that dismissal would normally follow gross misconduct, which preserved a discretion. The employer wrongly proceeded as though physical violence necessarily required dismissal and did not consider all the circumstances, particularly the claimant’s exemplary 42-year record. The dismissal was therefore unfair.

5. There was no basis to interfere with the Tribunal’s finding that the claimant had contributed 50% to his dismissal. The appeal against both unfair dismissal and breach of contract was dismissed.

• Employment Appeal Tribunal: dismissed the employer’s appeal: [2016] UKEAT 0170_16_1511.
• Employment Tribunal: following a hearing on 21 December 2015, judgment sent on 28 January 2016 upheld the claims for unfair dismissal, breach of contract and notice pay, with a 50% contributory-conduct finding.