Dismissal of employee charged with assaulting his partner at her home was unfair but not discriminatory

The Court of Session has reinstated a tribunal's decision that an employee, dismissed for an alleged domestic assault on his partner (who also happened to be his colleague), was unfair under section 98 of the Employment Rights Act 1996. Since the dismissing officer expressly accepted that the employee had acted in self-defence, it could not be said that he believed in the employee's culpability. In these circumstances, the tribunal had been entitled to find that the employer had not established that the reason, or principal reason, for the employee's dismissal was misconduct. In any event, the employer's investigation was inadequate and unreasonable.

However, the court declined to reinstate the tribunal's decision that the dismissal was an act of direct sex discrimination. It accepted the tribunal's finding that the employee could compare his treatment with that of his partner, who had not been disciplined. Although there were some differences in their circumstances, such as that his partner had not been charged with offences, the tribunal's conclusion that their situations were comparable was not absurd. However, the tribunal had erred in its approach to the burden of proof. With reference to the employer's inadequate investigation, it had begun with a hypothesis that the employee was dismissed because of a sexist assumption that, in any dispute between a man and a woman involving physical contact, the man is likely to be the aggressor. Its first step should have been to examine the proven facts to see whether it could draw an inference that direct discrimination had occurred. (CJD v Royal Bank of Scotland [2013] CSIH 86.)

If you would like more information, please contact Mandy L Quinn, Partner and Head of Corporate Team at Dallas McMillan, Solicitors on 0141 333 6750.