Arnold Clark Automobiles Ltd v Spoor – dismissal of employee for physical violence against a colleague was unfair

In the case of Arnold Clark Automobiles Ltd v Spoor UKEAT/0170/16/DA the Employment Appeal Tribunal (“EAT”) held that the Employment Tribunal had not erred in finding that the dismissal of an employee for physical violence against another employee was unfair, as there was no error of law in the Tribunal’s decision.

Mr Spoor commenced employment with Arnold Clark Automobiles Ltd (“Arnold Clark”) in 1973 and was, at the times relevant to this case, a Motor Vehicle Technician.

On 27 April 2015 Mr Spoor momentarily lost his temper with a colleague over a minor issue and placed his hands on the colleague’s neck for a couple of seconds. This incident was reported by the colleague to his line manager, Mr French and Mr Spoor was interviewed by Mr French. In this interview Mr Spoor admitted that he may have caught his colleague’s throat but contended that he had not grabbed his colleague by the throat. On 28 April 2015 Mr Spoor approached his colleague to apologise for his actions and, later in the day, both Mr Spoor and his colleague were called by Mr Middleton (the Service Manager) to a meeting to discuss the incident. Mr Middleton informed Mr Spoor that he had decided not to take any formal disciplinary action regarding the incident but that he intended to issue Mr Spoor with a “letter of concern”, in line with Arnold Clark’s informal procedure. Mr Spoor again apologised to his colleague and confirmed that he knew that he was in the wrong and should not have done what he did. Mr Spoor and his colleague shook hands and they both returned to work.

On 28 April 2015 Mr French sent a copy of the “letter of concern” to Ms Kilshaw (Human Resources). Mr French confirmed that there had been “some handbags”, that a copy of the “letter of concern” would be issued to Mr Spoor, and that he was sending this to Ms Kilshaw for her records. Upon the receipt of Mr French’s email Ms Kilshaw became concerned that there had been an incident of physical violence, and decided that a formal investigation of the incident was required. Ms Kilshaw therefore interviewed Mr Spoor, Mr Chapman, and other colleagues, and suspended Mr Spoor pending a formal disciplinary hearing. On 30 April 2015 Ms Kilshaw sent Mr Spoor a letter stating that an outcome of the hearing may be dismissal.

On 6 May 2015 Mr Spoor attended a hearing. Mr French and Ms Fowler (Human Resources) also attended the hearing. At the end of the hearing Ms Fowler confirmed that Mr Spoor would be dismissed for gross misconduct as “…we deem any form of physical violence as unacceptable…”. She also stated that the company had a “zero tolerance policy” to physical violence and did not consider it appropriate to undertake a review of the context of the incident, including Mr Spoor’s length of service (42 years), his exemplary disciplinary record, and the level or degree of physical violence.

Mr Spoor appealed the decision to dismiss him but this was rejected. Mr Spoor made a claim to the Employment Tribunal for unfair dismissal and wrongful dismissal, and this came to a full hearing on 21 December 2015.  The Employment Tribunal found that the investigation undertaken by Arnold Clark was not reasonable in the circumstances as no attempt was made to discuss the matter with Mr French or Middleton and, in particular, to obtain their view of the seriousness of the incident. Further, the Tribunal also found that no reasonable employer would have dismissed in the circumstances, having proper regard to all of the circumstances including his length of service and previous record. The Tribunal did, however, find that Mr Spoor contributed to his own dismissal to the extent of 50 percent.

Arnold Clark appealed against this decision on four grounds, including that the Tribunal had impermissibly substituted its own view for that of Arnold Clark (“the First Ground”), that the Tribunal had misdirected itself by applying the guidance in the case of Ramphal v Department of Transport [2015] IRLR 985 (“the Second Ground”), that the Tribunal failed to make any finding as to whether Mr Spoor’s behaviour constituted gross misconduct (“the Third Ground”), and that the Tribunal had acted perversely as this was not a decision that any reasonable Tribunal properly directly itself on the law could have reached (“the Fourth Ground”).

The Employment Appeal Tribunal rejected the First Ground and Fourth Grounds of appeal but found that Arnold Clark’s appeals on the Second Ground Third Ground had some merit, as, respectively, Ramphal was not applicable in the circumstances and the Tribunal had failed to give specific reasons as to whether they had found Mr Spoor’s behaviour to be gross misconduct under Arnold Clark’s disciplinary policy. However, the EAT found that the merits of these grounds of appeal were not sufficient to merit the upholding of the appeal, as the EAT were satisfied that Arnold Clark had failed to take into account all the circumstances (including Mr Spoor’s exemplary service and the seriousness of the incident) when reaching its decision to dismiss.

The EAT also dismissed an argument that Mr Spoor had contributed to his own dismissal to the extent of 100 percent.

The EAT therefore rejected Arnold Clark’s appeal.

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case shows that employers must carefully apply their disciplinary policy and take into account all of the circumstances of the case before making any decision to dismiss – a failure to do so may render any decision to dismiss unfair.”