Dismissal for Assaulting Partner at Home was Unfair

2 mins

Posted on 21 Nov 2013

An employer was not entitled to dismiss an employee for assaulting his partner, who was also a colleague, at home. 

In CJD v Royal Bank of Scotland, CJD and his partner worked together. There was an altercation at their home involving a degree of physical contact in the course of which CJD pushed his partner on to a sofa and later kicked the door down. He was arrested and charged with assault and pleaded not guilty. When the matter came to his employer’s attention, it launched disciplinary proceedings to consider whether his actions amounted to gross misconduct under its disciplinary policy - which applied to conduct both inside and outside work. CJD stated that his partner was slapping and scratching his face, that he had acted in self defence and that he had reported his partner to the police. Although his employer accepted that he acted in self defence, it dismissed him for the assault. 

CJD claimed unfair dismissal. The Court of Session upheld the employment tribunal's finding that CJD had been unfairly dismissed. An employer can only rely on conduct as a fair reason for dismissal if the conduct, whether done in or outside the course of the employment, reflects in some way on the employer-employee relationship. It was difficult to see how the action of an employee, acting in self-defence, pushing another person on to a sofa in a domestic situation could reflect on the employer/employee relationship. In addition, having accepted that CJD acted in self-defence, it could not be said that the employer believed in his guilt. The employer did not therefore have a fair reason for dismissal and CJD’s unfair dismissal claim was upheld. 

Employers are entitled to dismiss employees for conduct outside work if the conduct in some way affects the employee at work, for example because work colleagues will refuse to work with him or there is some other adverse effect on working arrangements. This will depend on the facts of each case. Although the employer in this case stated in the dismissal letter that it considered the employee to present a risk to the company, employees and property (thereby suggesting that it viewed the conduct as affecting him at work) the fact that it accepted that he acted in self-defence seems to have been a key factor in the court’s decision that the conduct did not impact on his work.

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