If you assault someone outside of the workplace your employer may be able to dismiss you, whether or not you are investigated or charged by the police as a result of thee incident. However, whether the decision to dismiss you is fair depends on the circumstances. In order to fairly dismiss you your employer must make a decision which is in the reasonable range of responses (“substantive fairness”) based upon the particular facts of the matter, and a thorough and fair investigation must be carried out into the matter (“procedural fairness”). If your employer fails to do this then you may have a case for unfair dismissal.

Under s.94 of the Employment Rights Act 1996 you have the right not to be unfairly dismissed from your employment . As above, in order to avoid unfairly dismissing you your employer must make a substantively fair decision to dismiss you and must also carry out a fair procedure in determining whether to dismiss you. The burden of proof is on your employer to show what the reason for dismissing you is. In cases involving assault inside or outside of the workplace the reason for dismissing you will normally be fairly clear. However, your employer can’t use the incident to penalise you for reasons not related to the assault (such as, for example, an ongoing personal antagonism between yourself and another member of staff). Once your employer has established the reason for your dismissal they must also provide a “potentially fair reason” for your dismissal. In the case of allegations of assault the potentially fair reason would be “misconduct” (potentially gross misconduct).

A reasonable and thorough investigation must be carried out into the allegations of misconduct. This may or may not be based upon the results of the police investigation. If the police investigation is likely to be an extended one it may be reasonable for your employer not to wait for this information to become available, especially if your absence from work is having a substantially detrimental effect on your employer’s business. Your employer should hold an investigation into the allegations against you and should obtain all evidence that it is reasonable in the circumstances to obtain (such as documentary evidence, witness statements etc.). If the assault has occurred outside of work then it will not be necessary for your employer to obtain statements from the persons involved, if they do not work for your employer. However, a failure to collect and utilise evidence which should reasonably have been obtained may render your dismissal unfair. Your employer should also sit down with you and obtain your perspective on the incident. You are also allowed to present evidence of your own at the investigation, including witness statements. You may wish to obtain statements from persons who were involved in or witnessed the assault (if they are favourable to you).

After the investigation has been concluded your employer should state whether a disciplinary is necessary and, if so, why. You should then be invited to a disciplinary hearing to be held within a reasonable time period, informed that dismissal is a potential sanction, and informed that you are able to invite a colleague or a Trade Union representative to accompany you to the meeting. You should take the opportunity to invite such a person to the disciplinary hearing – they will be useful as corroborating evidence of what occurred and can take notes for you while you deal with the disciplinary hearing. Ideally, the person dealing with your disciplinary hearing should be completely impartial and removed from any of the incidents that have previously occurred with you. However, with small businesses this often isn’t possible. You should be given a further opportunity to present your case to your employer and to critically analyse the evidence that your employer has gathered. Your employer may make a decision after this first disciplinary hearing or may conclude that further hearings are necessary. However, if your employer does decide to discipline you then you must receive the reasons that this decision is based on. You should be informed of your right to appeal your decision. A failure to do so will probably render the decision to dismiss you unfair. However, any decision to discipline you must be based upon a genuine and reasonable belief in your guilt, based on the outcome of the investigation and disciplinary procedure.

Your employer should bear the following issues in mind in determining whether to dismiss you:

  • The nature of your employment
  • Your position
  • The nature of the incident
  • The effect on the employer, on the employer’s customers, and on your fellow workers
  • Your past record;
  • Your proximity to members of the public
  • Whether the incident affects your ability to do your job; and
  • Whether your employer has lost trust in you

Depending on the circumstances, your employer will normally suspend you from work pending the outcome of the police investigation. Whether you receive full pay during your suspension depends on a number of issues, including the facts of the allegations and the nature of your employer. Your employer should take into account facts such as the length of time before the proposed disciplinary hearing, the seriousness and nature of the offence, and the effect of your suspension on their business.

If your employer fails to fairly dismiss you (either substantively or procedurally) then you may have a case for unfair dismissal.

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The Direct 2 Lawyers Employment Team post daily on interesting employment law cases, Employment Tribunal judgments and Employment Appeal Tribunal judgments. All of the Employment Team posts are written by qualified specialist employment lawyers

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