The BBC’s decision yesterday not to renew Jeremy Clarkson’s contract raises the more general issue of the extent to which employers have to consider mitigating factors in misconduct cases and determine if the employee should be held to be culpable for his/her actions.
The first point to make is that an employee is always going to find it difficult to persuade an employment tribunal or a court that they shouldn’t be sacked after physically assaulting a colleague, no matter what the background. However, context is everything and an employer has to take into account all of the background before making its decision. For example, it may be relevant if the employee was acting in self-defence, or was provoked, or the incident was triggered by some other extraordinary situation (such as if the employee had a mental illness or was suffering from extreme stress at the time). But simply being tired, hungry or suffering from low blood sugar levels is unlikely to be a good excuse for this type of behaviour. The employer will also be expected to take into account the employee’s track record and length of service before making its final decision.
Provided an employer takes into account all of the relevant circumstances, an Employment Tribunal is unlikely to interfere with its decision.
However, some recent legal developments do demonstrate how the courts are viewing employee culpability and may surprise many employers.
Firstly, the EAT issued a decision last year that involved an employee who was suffering from paranoid schizophrenia. He was on medication when he returned to work, but subsequently (in accordance with his doctor’s advice) stopped taking the medication. Having stopped taking his drugs, his symptoms returned and he sexually assaulted two female colleagues. Unsurprisingly, the employer decided that the employee was guilty of gross misconduct and dismissed him summarily. However, the EAT decided that the dismissal was unfair because the employer had not considered whether the employee, given his mental illness, was culpable for his actions.
Outside of the employment law world, a jury in Tennessee recently found a defendant who had killed two women guilty of voluntary manslaughter rather than first degree murder. This finding was based on evidence that the accused’s genetic code included the so-called “warrior” gene that predisposed the individual to extreme violence.
None of this means that employers cannot dismiss employees who physically assault others. However, employers do need to consider the employee’s physical and mental state at the time of the relevant event and factor this into their decision making. This may mean, for example, that an employee suffering from a mental illness who commits an assault is dismissed for some other substantial reason (i.e. the employer cannot risk the wellbeing of other employees) rather than gross misconduct.