An employee who threatened to “shoot” a colleague was unfairly dismissed because of the way the company handled the disciplinary process, an employment tribunal has found.
Relevant legal principles
In an unfair dismissal case, an employer must prove its reason for dismissing the employee and that the reason was one of those listed in the Employment Rights Act 1996 as potentially fair reasons for dismissal. After that, the tribunal must decide whether the employee’s dismissal for that reason was fair.
If the employee’s conduct was the reason for dismissal, the tribunal must decide whether the employer had a genuine belief that the employee had committed the misconduct based on reasonable grounds and whether the employer had carried out a reasonable investigation.
It is necessary also to decide whether the procedure adopted by the employer and the decision to dismiss were reasonable.
The standard is that of the range of reasonable responses of the reasonable employer and the tribunal is not entitled to substitute its view for that of the reasonable employer.
Summary of the facts
The Claimant was, until his dismissal, the national locksmith manager for Timpson, and made the comment during a telephone conversation with a scheduling team leader.
At one point during the call, the scheduling team leader asked whether the Claimant had heard the news about one of the locksmiths in the central Scotland region being dismissed and suggested that the business could cope without replacing him.
In response, the Claimant said: “I swear to God, if you say that, I want to f**king shoot you, not under any f**king circumstances say that in passing to anybody because you’d be my own worst enemy doing that. Honestly, we need, we need four in the central belt.”
The scheduling team leader complained about the Claimant’s conduct to a company director the following day. He said he felt he had been threatened by the Claimant and was worried that working with him would become difficult if he did not raise the matter, but he also indicated that he was not too upset by the comment.
The Claimant was suspended pending an investigation into an allegation about the use of threatening and abusive language.
At his investigation meeting the Claimant apologised for his comments. He said he never meant any malice by them and explained that he used the language because he felt comfortable with the colleague and felt he could express himself candidly. He did not accept he had threatened him.
A disciplinary meeting was subsequently held at which the Claimant was dismissed for gross misconduct. A letter informed him that it was unacceptable for him as a senior manager to threaten a colleague, particularly one over whose career and working environment he could have an influence.
The Claimant brought a claim for unfair dismissal in the employment tribunal (ET).
The ET ruled that the decision to dismiss the Claimant had been unreasonable.
At no point was it thought by anybody that the Claimant had threatened literally to shoot his junior colleague, or even to cause him physical harm, but the ‘threat’ was interpreted as being that, if the colleague expressed his views about staffing levels to others within the employer’s management structure, the Claimant would, in some unspecified way, use his management influence to the detriment of the colleague’s future career. Although the Claimant argued that he had not intended to come across as threatening, the tribunal accepted that the employer had reasonable grounds to conclude that the Claimant’s words were threatening in nature and the employer was entitled to conclude that they amounted to misconduct.
The tribunal went on to rule that the employer’s decision to dismiss was also influenced by a belief that the Claimant was not remorseful and/or was not accepting of his wrongdoing and, in addition, by a perception of the effect which the incident had had on the colleague. However, in the tribunal’s view, the employer did not have reasonable grounds to conclude that the Claimant was not sorry for what he had done. He had expressed sorrow and regret on several occasions. Nor did it think the employer had reasonable grounds to conclude that the incident had had such a serious impact on the colleague. The employer had not asked the colleague about the incident in any detail, and a more thorough review of the evidence would have shown that the colleague himself said that the alleged threat had not scared him as much as the employer thought.
The tribunal said the employer should have taken into account the additional facts that the comments were made during an informal phone call, the Claimant’s long service and clean disciplinary record, and the unlikelihood of the behaviour happening again.
An award for compensation has not yet been made, but the employment judge indicated that it should be reduced by 25% to reflect the extent to which the Claimant contributed to his dismissal
Mr D Pemberton v Timpson Limited ET2402006/2019
Although at first sight it seems remarkable that a threat to shoot a colleague should not justify dismissal for gross misconduct every time, context is very important. Nobody took the threat literally and the junior colleague admitted that he wasn’t alarmed. In the circumstances, which included an apology by the Claimant and his long service and good disciplinary record, the ET decided that the employer had acted unreasonably in concluding that the Claimant’s conduct justified his dismissal.
Warning: this news item is not a substitute for legal advice. The information may be incorrect or out of date and does not constitute a definitive or complete statement of the law. This news item is not intended to constitute legal advice in any specific situation. Readers should obtain legal advice and not rely on the information in this article.