Just reviewing the commentaries to gauge views on that incident in the final match of the World Cup made me understand once again how we all love to watch a good “bundle”.

But what if the violence is happening in your workplace?  What if a couple of your employees decide it’s time to resolve their differences with a little tête-à-tête, à la Monsieur Zidane?

The yellow / red card – playing by the rules

It’s pretty clear to most that violence in the workplace is not to be tolerated. Most employment/staff policies will explicitly state that acts of violence will be grounds for disciplinary action, and even if your company handbook doesn’t say so, it can safely be assumed that employees should be aware that this is the case.

Even where there has been an apparently clear cut incident of violence, though, be wary of acting on gut instinct. Like blatant dishonesty offences, it can be tempting to leap straight to dismissal.  However, that will make a dismissal automatically unfair in almost all instances.  Like all disciplinary issues, violent offences should be investigated, and a meeting held in which the employee can give their side of the story. Your own policy will almost certainly require this, perhaps even as a contractual obligation. 

In any event, the October 2004 statutory grievance and dismissal procedures (The Employment Act 2002 (Dispute Resolution) Regulations 2004) will have to be complied with to ensure a procedurally fair dismissal is effected.   If you have a Zidane-a-like in your workforce, you may say that there would be a significant threat to you if you attempted to conduct due process in response to a violent incident. This argument is unlikely to wash, as a Tribunal would probably conclude that an employee who acted in the heat of the moment was still quite capable of controlling himself in a disciplinary situation and probably would not direct his anger at the hapless HR officer investigating the case, but at the initiator – to his mind – of the trouble, unless, of course, you have a serial offender in your midst.  Although there are exemptions available to the processes, these are narrow and it is more likely that the modified disciplinary or dismissal procedure will apply, than none at all.

As Zidane would no doubt say (and the lip-readers will know best) sometimes not all is straightforward; and provocation can explain a lot….

Agent Provocateur

What if an attack by an employee is provoked?  It will become doubly important to hear both sides of the story. As with allegations of harassment, where there is a lack of clarity about where fault lies, the employer should treat both sides equally. That may well mean suspending both employees – although bear in mind that you generally can only suspend from duties if there is a power to do so in your contracts. There is a possibility, too, of a constructive unfair dismissal claim, if an employee has been subjected to repeated or severe provocation and management has knowingly failed to react to the situation and bring the bully under control.

Fighting in the Streets

Most seasoned HR officers will have encountered the Christmas party which goes wrong, and ends in a bit of trouble. So, the punch-up happened outside the office?  None of your business, as employer?  Sadly, it’s not that simple. As with discrimination, an employer may be vicariously liable for the violent acts of its employees provided there is a sufficient connection with employment. This will mean that two employees who encounter each other on the opposite side of town and have a punch-up over a prize parking or picnic spot will, almost certainly, not be acting in the course of employment. You may have to take a decision whether their behaviour may bring the company into disrepute (for example, if the company name was emblazoned over the company cars for the assembled gathering of gawpers to admire; or the pair were wearing company badged clothes).

But what about racism at the family works outing, leading to a fight?

A heady mix of racist provocation and violence

Mr Sidhu, formerly of Aerospace Composite Technology Ltd was the victim of a seemingly harsh decision by the Court of Appeal (Sidhu v Aerospace Composite Technology Ltd).  Mr Sidhu was a longstanding employee of ACT.   He was enjoying a company day out at a racetrack with his wife and family, when he was subjected to racist taunts by another, new, employee, one Kevin Smith. As a result of being set upon by the said Mr Smith and two of his white friends, Mr Sidhu received a cut head and broken glasses. Mr Smith was the initial aggressor, but during the incident Mr Sidhu picked up a plastic chair. He claimed that he did so in self-defence, but some witnesses said that he had wielded it in an aggressive manner, although he did not make contact with anyone.  One might have felt the provocation was a defence, but after a long and clearly difficult deliberation, the company concluded that Mr Sidhu should be dismissed (as well as his racist colleague).   It was held not to be direct race discrimination for an employer who disciplined an employee for fighting with a fellow employee outside work to disregard the fact that the violence used by the employee was in response to a racially-motivated attack.  In other words, if ACT would have dismissed anyone for fighting, it did not matter that Mr Sidhu was dismissed in an incident which happened to be race-related, since this had no bearing on the decision.  No doubt, a view which would chime with FIFA.

Violence and Illness – Look before you Leap

One might be forgiven, too, for expecting that the Citizens’ Advice Bureaux might legitimately conclude that a candidate who suffered a tendency to violence was not suitable for employment in the CAB.  However, in Murray v Newham CAB (No. 2) [2003] ICR 643 the CAB was explicitly criticised for applying a knee-jerk reaction to discovering the candidate’s illness, which amounted to a disability for the purposes of the Disability Discrimination Act.  In the circumstances, the duty to make reasonable adjustments required an employer to make proper inquiries into applicant’s condition before rejecting his candidature out of hand.  A similar decision was reached in Paul v National Probation Service.

When the final whistle has already blown in the magistrates’ court 

What if an employee has been convicted of an offence of violence by a magistrate’s court?   If there is sufficient connection with the employment, this may be sufficient grounds to dismiss, after allowing the employee to say their piece in a fair procedure.  

If the employee pleaded guilty to the offence, so much the simpler. But the case of McLaren v National Coal Board [1988] ICR 370 makes clear that an employee should be given an opportunity to explain his conduct.  In this case, the employee had pleaded guilty on a technical basis only (the assault had occurred in the context of the miners’ strike). 

Headers and Footers

So, to sum up: an employee is not violent until he has been proved to be: you are unlikely to have the benefit of the world’s press and a thousand lip-readers the world over as witnesses of any workplace incident, so make sure your investigation is thorough. A fair and lawful disciplinary dismissal is a game of two halves:  the fair reason, and the fair process. And unless you have acted within the range of reasonable responses open to an employer, you can kiss the Cup of Tribunal Success farewell.   HR and refereeing are sadly not one and the same, and instant yellow and red cards are not an option.  But at least HR doesn’t have to wear black all the time (unlike your lawyers).  

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