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Employee unfairly dismissed for assaulting partner but not discriminated against

17th December, 2013

An employee was held to have been unfairly dismissed following an alleged assault on his partner, also an employee of the respondent, in the recent case of CJD v Royal Bank of Scotland [2013] CSIH 86.

CJD and his partner, LC were both employees of the Royal Bank of Scotland (“RBS”) and shared a home in Glasgow. Outside of working hours, there was a physical exchange between CJD and LC which resulted in CJD’s arrest for breach of the peace. When RBS became aware of this, CJD was questioned and claimed that LC had hit him several times directly to his face so in self-defence he had pushed her onto a sofa. CJD was subsequently suspended by RBS. When also questioned, LC voiced a very different version of events stating that CJD had physically abused her in multiple ways and threatened to kill both herself and her family.

RBS took disciplinary action against CJD to consider whether his actions amounted to gross misconduct which, according to their disciplinary policy, could occur outside the workplace. RBS accepted that CJD had acted in self defence but nevertheless he was dismissed. RBS stated in their dismissal letter: “Taking all the information into consideration I took my decision because I consider that you have failed to meet acceptable standards in relation to your conduct outside the workplace … where you confirmed that you assaulted LC who is an employee of the Group … I consider that as a result of this assault, you present a risk to the Group, employees and property”.

In reality, CJD had pleaded not guilty to assault and only guilty to breach of the peace (for which he was reprimanded). CJD unsuccessfully appealed RBS’s decision to dismiss him, so he brought a claim to the Employment Tribunal for sex discrimination and unfair dismissal.

At first instance, the Tribunal upheld both of CJD’s claims that he had been unfairly dismissed and directly discriminated against. However, the Employment Appeal Tribunal overturned both of these decisions. CJD appealed.

The Court of Session held that CJD had been unfairly dismissed but not discriminated against.

In terms of unfair dismissal, the Court applied the Burchell test to question whether RBS really believed that CJD had committed an act of misconduct. It was held that although RBS believed CJD had pushed LC, this did not amount to the assault which they averred was the principal reason for dismissal. In turn, RBS was held to be having regard to other matters, namely CJD’s arrest for breach of the peace, in their decision to dismiss him.
In terms of sex discrimination, the Court questioned the differences between CJD and LC (as LC was being used as a comparator to this claim) and concluded that the significant differences between them, such as the fact that CJD was arrested, meant that they were not accurately comparable for the purposes of this case and the Tribunal had erred in their application of a comparator. The Court therefore overturned the Tribunal’s decision and dismissed CJD’s sex discrimination claim.

This case highlights how conduct outside the workplace can fall within the scope of a Company policy and the importance of the correct implementation of such policies to prevent claims of unfair dismissal and/or discrimination.

For further information and advice on unfair dismissal and discrimination, please contact Helen Watson on 01244 405565 or send an email to [email protected].

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