Conflict at the Christmas party – disciplinary sanctions when staff ‘come to blows’
As the festive holiday period approaches, workers are heading out in droves for their annual Christmas parties – where inhibitions are left behind in…
As the festive holiday period approaches, workers are heading out in droves for their annual Christmas parties – where inhibitions are left behind in the office and alcohol will often be rife. In the vast majority of cases the Christmas party will be an enjoyable and fun-filled event. However it is inevitable that some employers will be faced with employees committing acts of misconduct and, in some cases, the conduct may be serious enough to warrant dismissal. As such it pays to take a proactive approach to minimising the risk of such misconduct and to take steps to remind employees of their responsibilities to behave in an appropriate manner.
In the recent case of Westlake v ZSL London Zoo, a London Zoo worker was found to have been unfairly dismissed after glassing her female colleague in the face following a Christmas party fracas. Although in this case Ms Westlake’s compensation was reduced to nil, the case particularly highlights the importance of being consistent in terms of any sanctions imposed following Christmas party misconduct. It is crucial to maintain impartiality at all times and to undertake a rigorous investigative process that is objective throughout - applying sanctions that are commensurate with the actions of each individual involved.
Whether a dismissal is fair will depend firstly on whether the reason relied upon falls within one of the reasons permitted under the Employment Rights Act 1996, which include conduct.
Secondly, the reason relied upon has to be reasonable, having regard to whether in the circumstances (including the employer's size and administrative resources) the employer acted reasonably in relying on that reason as sufficient to dismiss the employee, and the equity and the substantial merits of the case.
When determining whether a dismissal is fair, the Employment Tribunal will consider whether the decision to dismiss an employee for conduct was within the range of decisions which a reasonable employer, acting reasonably, could reach.
When disciplining employees, you should act consistently when imposing sanctions and it will not usually be reasonable to impose different sanctions in two similar cases. However, it is sometimes possible to make distinctions even between cases which are related or are very much alike (for example, where there are aggravating factors or mitigating circumstances). If it is alleged that a difference in treatment has rendered a dismissal or other disciplinary sanction unfair, the Tribunal will consider whether the employer’s differential treatment was such that no reasonable employer could have made the same decision.
In Westlake v ZSL London Zoo, meerkat keeper Caroline Westlake and her colleague, monkey handler Kate Sanders, came to blows over a llama keeper at the zoo. Although it was disputed who had thrown the first blow, Ms Westlake ultimately glassed Ms Saunders in the face.
Following disciplinary hearings involving both employees, Ms Sanders received a final written warning and was banned from future workplace events whereas Ms Westlake was summarily dismissed.
The Tribunal held that the disciplinary process was flawed in that both women were culpable for the fight and should have received the same penalty. The Tribunal concluded that without clear evidence of who started the fight, no reasonable employer would have placed the primary blame on Ms Westlake, thus making her dismissal unfair. The Tribunal went on to state that in the circumstances, both employees could have legitimately been dismissed or both could have been given final warnings.
Inconsistency of treatment has also been highlighted in another recent case, MBNA Ltd v Jones,which also involved two employees clashing at a work event.
Mr Jones clashed with his colleague, Mr Battersby on a number of occasions throughout the night, which culminated in Mr Jones punching Mr Battersby in the face. Although Mr Battersby had also behaved inappropriately by kneeing Mr Jones in the leg and sending a number of threatening text messages, only Mr Jones was dismissed whereas Mr Battersby was given a final written warning.
Much like Westlake v ZSL London Zoo, Mr Jones’ claim for unfair dismissal was initially successful because of this inconsistent treatment. The Tribunal held that, had both employees been dismissed, the dismissals would have both been fair.
However, on appeal, the Employment Appeal Tribunal found that Mr Jones’ dismissal was fair and held that just because a manager may have been lenient in the sanction imposed in one case, did not mean that the decision to dismiss in the other was necessarily unfair, so long as dismissal was within the range of reasonable responses.
Importantly, Mr Jones and Mr Battersby had different misconduct findings against them (one of them deliberately punching a colleague in the face and the other of making threats).
The decision in MBNA Ltd v Jones provides some reassurance for employers that imposing different sanctions will not always mean a dismissal is unfair.
However, you should always consider the circumstances of the incident carefully and decide if the dismissal in the particular case falls within the range of reasonable responses. If different sanctions are imposed, they should be carefully considered and explained. You should also consider charging both employees with separate and different acts of misconduct if the severity of their behaviour differs.
In cases where it cannot be determined who has started the fight, it would be wise to consider imposing the same sanction on both employees. If you chose to believe one employee’s version of events over the other and believe that this warrants the dismissal of one employee, it is important to be clear as to the reasons why this is the case and carefully weigh up any evidence.
Some thought also needs to be given to whether the misconduct is work-related. Employers do not always have the right to commence disciplinary action against employees following any incidents of misconduct at Christmas social events. Whilst conduct at a work-related social event is arguably inextricably linked to an individual’s employment, employees may have an expectation that what they do outside of working hours is not subject to the usual company standards on behaviour. It will usually be safe to assume that behaviour at a social event arranged and subsidised by your business will be considered work-related, but take advice if you are unsure. Areas of uncertainty may open up where employees arrange their own celebrations or ‘move on’ from the ‘official’ Christmas party to another venue.
Take pre-emptive action to avoid trouble before any work event and take particular care when providing alcohol at events, as this could be argued to be potentially condoning misconduct. It may be argued to be unfair to dismiss for drunken behaviour, when a manager has bought the drinks and knew about the state of the employee when doing so.
Employees should be reminded in advance that they are expected to comply with the accepted standards of conduct. That way, the fall-out from festivities is less likely to spoil the fun for all involved.
Laura Rogers is a member of the Employment, Pensions and Immigration Team based in Liverpool (firstname.lastname@example.org). If you have any questions on this issue, or are dealing with a tricky disciplinary case, please do not hesitate to get in touch with Laura or speak to your usual Weightmans contact.