Mr S Garsden (claimant’s friend) For the v Respondent — 2021

The tribunal found that the claimant was dismissed after an incident on 10 January 2020 in which he reacted physically to a colleague, Liam Worrall, after Worrall had rubbed and tapped the back of his head. The respondent investigated the incident, suspended the claimant on full pay, held a grievance process first, then carried out a disciplinary investigation and hearing. The tribunal accepted the respondent’s evidence that the case was treated as one of conduct and that the relevant disciplinary policy treated assault as gross misconduct.

Employment Judge Johnson found that the respondent genuinely believed the claimant had committed gross misconduct, had reasonable grounds for that belief, and carried out as much investigation as was reasonable in the circumstances. The tribunal relied on the witness accounts from Mr Worrall, Mr Shields and Mr Dronfield and held that any differences between them were not material to the central question of whether the claimant had assaulted a colleague. The claimant’s argument that the incident should have been treated as mutual or that Mr Worrall should have been disciplined in the same way did not succeed; the tribunal held that Mr Worrall’s conduct was not comparable to the claimant’s violent reaction.

On fairness under section 98(4) ERA 1996, the tribunal held that dismissal was within the range of reasonable responses open to a reasonable employer. It noted that the claimant did not accept at the disciplinary stage that his reaction was disproportionate, and that the respondent was entitled to treat the conduct as sufficiently serious to justify summary dismissal. The tribunal also found that the process complied with the respondent’s disciplinary procedure and ACAS guidance.

The tribunal rejected procedural unfairness arguments, including the complaint that the claimant should have been able to question the witnesses at the hearing and the issue about handwritten notes being destroyed. It held that the claimant had opportunities to present his case, that any procedural point was not material, and that in any event the claimant would have been dismissed even if any defect had been corrected, applying the Polkey principle. The complaint of unfair dismissal was therefore dismissed.