And in the red corner…

In our first case, ZSL Vs Westlake, two female employees from ZSL ended up having a fight at a staff Christmas party. The claimant, Ms Westlake was dismissed, however the other party, Ms Saunders, received a final written warning. Ms Westlake submitted a claim for unfair dismissal and latterly added disability discrimination (she was diagnosed with ADHD and dyspraxia albeit unbeknown to the hearing manager).

Ms Westlake challenged the disparity in outcomes given, arguing that both were equally to blame. The tribunal looked to understand why the two were treated differently but concluded that they couldn’t find any proper justification. Westlake complained that Saunders threw the first punch and then held Westlake over the balcony by her throat.

The tribunal felt that there were holes in the investigation, there was no clear approach to who they met with or didn’t or whose account of the incident they gave weight to. The outcome appeared to be based more on subjective conclusion than objective fact. Indeed the dismissing manager stated she had followed her gut in assessing who she believed and didn’t, and that given Saunders’ injury (she was cut) felt that on the balance of probabilities Westlake was more culpable than Saunders. As a result the tribunal found that the disciplinary manager appeared to have based her decision solely on who had the worse injury and that this was poor logic.

The Tribunal upheld Ms Westlake’s claim, concluding that without clear evidence of who started the fight, no reasonable employer would have given differing outcomes.

In contrast in MBNA Limited v Jones the Employment Appeal Tribunal decided that differential treatment was justified. In that case two members of staff, Mr Jones and Mr Battersby, attended a works party…and you can see where this is going….things got a little out of hand, resulting in Jones punching Battersby in the face. Following the party Battersby sent threatening texts to Jones, although never followed through on them.

Jones was dismissed for his physical attack, Battersby received a final written warning for his conduct, including sending threatening texts. In this case the tribunal agreed that conduct of Jones was altogether more serious and as Battersby had not followed through with his text threats, MBNA was justified in dismissing one and warning the other.

So what can employers learn from these two cases, apart from not having works events (bah, humbug!). In assessing a case of a physical altercation between two employees a tribunal will address 3 questions:

  1. Has a thorough investigation been carried out?
  2. Based on that investigation does the employer believe the employee guilty of the misconduct alleged?
  3. Does the employer have reasonable grounds for the said belief?

As ever with disciplinary hearings it all starts with a decent investigation. Here are our top tips for dealing with fight situations:

  1. Suspend the employees on the night if their presence is likely to lead to further trouble
  2. Conduct the investigation as quickly as possible – same day/next day is ideal
  3. Take detailed statements from witnesses and the employees themselves – signed as a record
  4. Review CCTV footage
  5. Make an objective decision on who is responsible
  6. Where there is no clear culprit from the evidence, apply a consistent decision to both
  7. Take into account, before deciding on dismissal, previous service and record of both employees
  8. Give an opportunity for employees to appeal your decision
  9. Keep all evidence and notes for at least 6 months

(About us. myHRdept was founded in 2002 by ex Coca-Cola HR Director Bill Larke who still leads the Company and supports key client CEOs with his wife and business partner Catherine (ex Senior HRM RHM). Together, with a growing team of generalists and specialists, without whom they wouldn’t be able to function, they provide up to date specialised support for employers who (in the main) don’t have their own in-house HR.)

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