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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50179
Experience:  Qualified Employment Solicitor
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- I have recently been dismissed misconduct,

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Hello - I have recently been dismissed for gross misconduct, following a "fracas" at a works Christmas party. I had drunk too much and got dragged into a verbal argument which escalated and I grabbed the person by the throat. Whilst this is clearly unnacceptable, there was no further violence. My employer followed all proper procedure and I was found guilty and dismissed.
I had worked for the employer for 19 years, all of which i had been recognised as a high performer, and had no other disciplinary issues. I was in a senior position, and at the time working under a very large amount of stress, working many hours. Unfortunately I did lose control on the evening and admitted responsibility. However I had been informed on multiple occasions that dismissal would not be the sanction.
The company is very much focused on HSSE and harassment is most definitely not acceptable.
My question is given my length of service, my performance record, and the stress I was under (which the company may not have been aware of at the time), is the sanction a fair one?
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. When were you dismissed?

Customer: On Monday 16th March
Ben Jones :

It is possible for an employer to dismiss someone for conduct outside the workplace. For example in Eggleton v Kerry Foods Ltd, an employee was dismissed fairly for fighting off-site with a colleague. While the fight took place in a car park across the road to the workplace, the employee’s conduct clearly affected working arrangements and had completely broken the employer's trust.

Long service, previous good conduct and provocation are all factors that may be relevant when deciding whether dismissal is the appropriate sanction. The issue is that there is no clear reference or scale that one can refer to which would give you a definitive answer to your question. One judge on one day may decide the dismissal was too harsh, another on a different day could easily decide it was fair. These issues are also mainly decided on appeal if either you or the employer decided to appeal the tribunal’s decision but then it all gets rather expensive and complex.

Customer: The incident did take place outside of the workplace on an evening, and there had been no previous issues between myself and the other person. This was a one off event. The other person, was a contractor and left a few days later.
Ben Jones :

did he leave as a result of this incident?

Customer: No...his contract was up. I had actually employed him 3 years previously. He worked for me for a year and then took on subsequent roles. I would actually have called him a friend until that evening, with no previous arguments.
Ben Jones :

These are mitigating factors – the first example I gave was where the other employee involved could not return to work as a result of the fight so the fact this person does not work there anymore and it had nothing to do with this incident should help. So there would certainly be arguments you can raise, 19 years is very long service and having had n disciplinaries to date and this being out of character with no further repercussion but no one can guarantee the outcome if you were to take it to tribunal. Before you do that you should appeal with the employer anyway and after that you also have to use ACAS to try and get settlement before claiming.

Customer: it worth me appealing with the employer?
Ben Jones :

yes of course you have nothing to lose. Even getting ACAS involved is free and the worst that can happen is you reach no agreement with the employer

Customer: Sorry meant to add that I grabber the individual by the throat, but I did not hit them. Does the law differentiate? The individual did claim they were injured and sought medical attention at the hospital. To be honest, my thoughts were it is not worth any dispute and I should just move on. If I did dispute, what would the likely result be, re-employment or a payout?
Customer: Or of course that I lose.
Ben Jones :

no this is still assault whether you hit them or not and in any event the employer would not be expected to differentiate between the specific criminal aspect of the offence

Ben Jones :

You could lose but it does not change your current position

Ben Jones :

if you win an appeal then they can re-employ you

Ben Jones :

if you won at tribunal you are looking at compensation for loss of earnings

Customer: If I did dispute could that impact any of my circumstances, specifically on my ensign allowance?
Customer: The company did state that their decision was partly based on precedence within the company.
Customer: Ps I think that you have been extremely helpful, and I have probably exceeded my entitlement by now.
Ben Jones :

no if you take it further it does not affect your rights - you are legally entitled to take it further if you wanted to

Customer: Ok. I really appreciate your help and advice.
Ben Jones :

you are most welcome

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