Violence in the Workplace - lessons to be learned from the Oscars incident
The unfortunate incident between Chris Rock and Will Smith at the Oscar Ceremony on Sunday 27th March shone a light on the issue of violence in the workplace.
Although Smith and Rock are not employees, this article will address how employers should handle similar incidents which occur at work.
What does the law say?
There is no specific piece of legislation that relates to violence at work but The Health and Safety at Work etc. Act 1974 imposes a legal duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees.
The Health and Safety Executive (HSE) define work-related violence as:
“‘any incident in which a person is abused, threatened or assaulted in circumstances relating to their work”.
The scale of the problem
So, how common is violence in the workplace? The HSE says that in 2019/2020 there were 688,000 incidents of violence at work.
How should employers handle incidents?
Violence in the workplace can never be condoned and should, in almost all circumstances, lead to disciplinary action against the perpetrators. It will almost certainly be seen as a gross misconduct offence with dismissal being a possible outcome. That said, no matter how ‘cut and dried’ the case appears to be, it is essential that employers follow the ACAS Code of Practice on disciplinary and grievance procedures before dismissing an employee.
It is important to carry out a thorough investigation into the incident. Statements should be taken from everyone involved in the altercation and also from any witnesses. Other evidence (for example CCTV footage) should also be reviewed if it is available. Having completed the investigation, a decision then needs to be made as to whether there is sufficient evidence to warrant disciplinary action against any or all of those involved.
Is suspension necessary?
Where there has been an altercation in the workplace, the employer should consider whether it is necessary to suspend any or all of those involved. Suspension should never be an automatic approach when dealing with a potential disciplinary matter and most situations will not require it. However, when there is a risk to other employees (or property or customers) then suspension might be appropriate. Employers could consider other alternatives to keep the affected parties away from each other such as a temporary transfer to a different team, moving an employee to a different area of the workplace, working from home or changing their shift patterns. If an employee is suspended, they should continue to receive their full pay and it should be for as short a time as possible – usually to allow the investigation to be completed and for any disciplinary meetings to be heard.
The Disciplinary Hearing
Assuming the case moves to a formal disciplinary hearing, the Disciplining Officer needs to consider all of the available evidence before deciding on an appropriate sanction. Although violence against a fellow employee is never acceptable, there needs to be consideration of all of the facts, for example:
· What happened immediately before the violence occurred?
· Was there any provocation?
· Was one party merely acting in self-defence?
· Was the violence in retaliation to something the other employee had done (for example to being bullied)?
· Is the offending party contrite about their actions?
In the Smith/Rock case, should this have happened in the workplace, Smith should certainly face disciplinary action for striking a colleague. However, his attack was as a direct consequence of Chris Rock mocking Smith’s wife, Jada Pinkett Smith’s medical condition, alopecia. Would this count as mitigation?
During any disciplinary action, the Disciplining Officer should consider any possible mitigation before deciding on an appropriate sanction.
There is case law to consider when making a decision on the appropriate sanction. In the case of Arnold Clark Automobiles Ltd v Spoor, Mr Spoor was dismissed because of a one-off incident of physical violence. The employer disregarded his exemplary record and forty-two years of service. Mr Spoor had been working for Arnold Clark Automobiles Ltd as a Motor Vehicle Technician. On the day in question, he lost his temper with an apprentice over a minor issue and put his hands on the colleague’s neck for a couple of seconds. Both the Employment Tribunal and the subsequent Employment Appeal Tribunal held that the dismissal was unfair.
Involving the police
Should there be an incident of violence in the workplace, those involved or anyone who witnessed what happened may choose to call the police, although they are under no obligation to do so. The employer and employees should then co-operate with any subsequent police investigation.
There is no general duty on employers to report assaults by one employee on another to the police, only to co-operate with any investigation which may be commenced.
What about the person carrying out the bullying which prompted the violent reaction from the colleague?
It should be noted that there is no specific definition of ‘bullying’ in UK employment law. ACAS defines bullying as:
“unwanted behaviour from a person or group that is either:
- offensive, intimidating, malicious or insulting
- an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone”
In the Smith/Rock case, it can easily be claimed that Rock’s joke was ‘unwanted’, ‘offensive’ and ‘insulting’. As such, should this have happened in the workplace, Rock should face disciplinary action for bullying Smith / Smith’s wife and ridiculing her about her medical condition.
Should you have an incident of violence in the workplace, it is essential to investigate the matter quickly and thoroughly. The ACAS Code of Practice should be followed at all times when carrying out disciplinary hearings.
Should you wish to speak to one of rradar’s legal team about this, or any other employment matter, please call us on 0800 955 6111.