A recent decision of the Employment Tribunal has found that an employer followed a fair procedure when investigating a violent incident with suspected intimidation issues. The claimant in this case, Mr O, was summarily dismissed following an altercation with a colleague, Mr W. Both men worked as refuse collectors. On the day the altercation took place it was alleged that Mr O had been calling Mr W "Doris". This was a reference to Mr W's size and strength and Mr O's perception that Mr W was not pulling his weight. The situation escalated to the point where the two men were arguing. Mr O then attacked Mr W, grabbing him by the throat, kicking him and holding him up against a car. The incident ended when one of the men's fellow colleagues and a member of the public interceded. The incident was formally investigated by the employer, even though Mr W had made it clear that he did not want to take the matter further. Mr W was allowed to be accompanied at the investigatory interview by his wife, as he was distressed. The employer also took the view that since Mr W was a 'short, quiet, shy, timid man' with a noticeable stammer, he would be intimidated by Mr O during the disciplinary hearing. Mr O was therefore excluded from the hearing while Mr W gave his evidence, although his union representative was present and had agreed to this. Mr O was dismissed for gross misconduct. Mr O had admitted most of the allegations, but claimed unfair dismissal on the basis that the disciplinary procedure was unfair. His claim was dismissed by the employment tribunal. The tribunal held that the employer was fully entitled to investigate the matter, regardless of the victim's wishes. In addition, the employer had not acted unreasonably in allowing Mr W's wife to be present during the investigation, as it did not give him any undue advantage and was justifiable because of his nervous character and stammer. The tribunal also considered that the employer's refusal to allow Mr O to be present while Mr W gave his evidence was proportionate in order to establish the truth. The employer had genuinely believed that Mr W's testimony would be affected if Mr O was in the room as his presence would intimidate Mr W. The tribunal was satisfied that a sufficiently thorough and unbiased investigation had taken place and the disciplinary procedure had been substantially fair. Comment This case provides a good illustration of the approach taken by the tribunal in cases where witness intimidation is a real possibility during the disciplinary process. Employers should note that in this case the employer went ahead with the disciplinary procedure against the victim's express wishes, and the tribunal was satisfied that the employer was fully entitled to do so. This case also highlights that, where a disciplinary procedure only allows for a work colleague or union member to be present at an investigatory meeting, it may be good practice to allow another person to be present in order to alleviate stress on the witness. Perhaps the most important issue to be raised by this case is the presence of the alleged perpetrator while witnesses are giving evidence. Employers should carefully consider any intimidation that may be caused by the presence of such an individual in cases of this type and may be justified in excluding that person without making the procedure unfair. This article was republished with the kind permission of Sam Greenhalgh, sgreenhalgh@steeleslaw.co.uk.
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