Public and Commercial Services Union

Case Ref: 10.5/ Oct 2005

Summary of case

A member was dismissed for gross misconduct following an incident at a works outing. The member had an altercation with another member of staff.

Advice requested

Our solicitors were asked to advise on the prospects of winning an unfair dismissal claim at an Employment Tribunal.

Key advice provided by Thompsons

Having studied the papers made available with the referral the solicitor was of the view that Mr M faced a difficult task in showing that the dismissal was unfair. The solicitor was pessimistic about Mr M's chances in an Employment Tribunal after providing the following advice:

"In respect of procedures, management has conducted an investigation followed by a letter laying charges of gross misconduct. It is true that the 23rd December letter laying the charge of gross misconduct refers only to "an occurrence of violent physical contact" and does not mention other matters subsequently set out in the 5th January letter of dismissal - excessive consumption of alcohol, insufficient regard for Mr M's managerial role, and bringing the employer into disrepute. Nonetheless, if those additional issues were mentioned at the start of the hearing, it would appear that adequate procedures were followed, given that you represented Mr M at the hearing.

"It also appears that the hearing was conducted in a way that allowed Mr M to put his case. You raised a number of points of concern regarding the investigation and were able to submit various arguments on behalf of Mr M.

"As you know, compliance with the minimum standards of the Dispute Resolution Procedures makes it more difficult to substantiate a complaint of unfair dismissal on procedural grounds. Furthermore, Tribunals are not sympathetic to unfair dismissal complaints arising from incidents of fighting. In this case, as you point out there are different recollections of the precise sequence of events.

"However, one colleague acknowledges that Mr M's hand made contact with Mr S's face, leading Mr S to punch Mr M. There also seems little doubt that the two men ended up on the floor together. Even if one discounts the additional allegations set out in Mr S's version of events and takes, for example, the statement from the proprietor of the Taverna, it does appear that the two men were "rolling about on the floor". I think it almost impossible to hope that there would be any chance of convincing an Employment Tribunal that the employer was not entitled to find that Mr M and Mr S were fighting at this function.

"It is true that fighting did not occur at work. However, it was a works outing, partly funded by the employer and so events at this function would be regarded as work-related.

"I do not know whether Mr S has also been dismissed. If he has not, then you could raise the issue of inconsistency on the part of the employer. Although Mr M was a Manager and Mr S a junior member of staff, the investigation does seem to establish that whatever contact Mr S made with Mr M's face, Mr S threw a punch hard enough to bring Mr M to the floor."

Legal department comment

Important points to note include:

• even though the incident took place outside of the office at a works function it is still considered to be work related
• the impact of the minimum standards of the Dispute Resolution Procedures on complaints about procedural issues
• how ETs may view any arguments about discrepancies in a charge letter and the letter of dismissal
• the general view ET's take where complaints arise from incidents of fighting
• inconsistency of treatment
• the added difficulty where the member dismissed is a manager.