Mon, 16 Mar 2015
Most workers spend more time at work than they do with friends or family. So it comes as no surprise that sometimes tempers are frayed, mild annoyance turns to anger, and anger sometimes leads to physical violence. Jeremy Clarkson at Top Gear is no exception. The “fracas” that he was involved in has been reported in the Press to be a punch after an argument about lack of food after a long day.
Of course, it goes without saying that physical violence in the workplace is unacceptable, and should not be tolerated, no matter how senior or important the perpetrator is. However, that doesn’t mean that the employee should be automatically sacked.
An employer can fairly dismiss an employee for an assault on a work colleague, but it must still consider mitigation and consider carefully whether dismissal is the appropriate sanction. There are a number of points to consider, but they fall into two broad categories:
· Mitigation concerning the incident itself
· Mitigation concerning the employee.
The Incident: Thankfully, physical violence in the work place is a rare thing. Therefore, it is all the more surprising when it does happen. To ensure that any dismissal is fair, the employer should establish the full circumstances of the incident. This may reveal powerful mitigating factors, such as provocation, or even self-defence. Remember, in English law, self-defence can be pre-emptory, if the individual has a reasonable belief that he is about to be assaulted. For example, an employee being subject to sexual or racial harassment who believes that s/he is about to be assaulted and who lashes out might have some powerful mitigation to avoid a dismissal. Finally, the level of violence is relevant too – a push and shove is far less serious than a relentless and sustained attack.
The Employee: The employer will also need to investigate matters that affect the employee directly. For example, was the incident out of character, and if so, what caused him to lose his temper the way he did? Is there genuine contrition, suggesting that it is unlikely to happen again? The employee may be suffering from stress from events happening in their life outside of the workplace, which may be relevant. He may be suffering from an illness or medical condition, or having an adverse effect from medication. The possibilities are as diverse as the human condition.
So, it is only after all these factors are taken into account, can an employer make a reasonable decision as to whether to dismiss. To fall short of that process will render the dismissal unfair.
Finally, the employer will also need to provide the victim with appropriate support. If the perpetrator is not being dismissed, then steps will need to be taken to ensure that the risk of a future incident is limited, which may mean moving the perpetrator to another team, or seeking agreement with the victim to move the victim elsewhere. Work place mediation is under-used by employers, and there may be much to be gained to conduct mediation across the whole team to ensure that any simmering issues are safely addressed. And of course, the victim or the employer may wish to report matters to the police.
We shall have to wait and see what happens to Mr Clarkson. If I was the BBC investigator looking at this matter, one of my lines of enquiry would be to see whether low blood sugar levels and tiredness had a part to play. Although Mr Clarkson is known for his robust and controversial opinions, physical violence in his case would seems to be out of character. As a fan of the show, I don’t want to see it end. But ultimately, if a disciplinary investigation finds that he has shown no contrition for his behaviour, and there was little or no excuse for it, demonstrating arrogance of his position and celebrity, then there is little option but for Mr Clarkson to go.
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