Is it fair to dismiss an employee involved in an altercation that took place outside of work?
When incidents occur outside the workplace, employers may find it challenging to determine if they can take disciplinary action - or even dismiss an employee - because of conduct that takes place off-site. In this article we explore the case of R Shearwood v London Fire Commissioner where an employee was dismissed because of an altercation in the local supermarket.
Facts
Mr Shearwood, a hydrant technician with the fire brigade, visited a supermarket during his lunch break. While at the self-service checkout, he became involved in an altercation with a member of the public who we'll call “B”.
According to Mr Shearwood, B pushed ahead in the queue. When he challenged her by saying, “Excuse me, why are you pushing in?” and received no response, he removed her items from the checkout to scan his own. He alleged that B then leaned into him, using her body weight to physically move him aside. In response, he extended his elbow to the side to maintain balance, describing it as a reflex action.
B alleges that Mr Shearwood physically assaulted her. Although he was not in uniform, he was identified as a fire brigade employee because he arrived in a brigade vehicle. Consequently, B lodged a formal complaint with the fire brigade. She said she had been waiting in the ‘scan as you shop’ area, but due to a malfunctioning scale, a member of staff directed her to use a self-checkout machine to weigh an item. When she proceeded to a till, she claimed that Mr Shearwood wrongly accused her of queue-jumping. She attempted to explain the situation, but he refused to listen. When she placed her purse and item on the scale, she claims that he pushed her to the ground and went on to make derogatory remarks.
A ‘local management investigation’ was launched and led by Mr Shearwood's supervisor. The supermarket was asked to provide a copy of the CCTV footage; however, due to data protection restrictions, it was unable to release it. Instead, the store manager viewed the footage and the supervisor recorded what she was told; a bearded man at the self-checkout appeared to ‘shoulder barge’ a woman to the ground, although there was no audio, the woman appeared visibly distressed, and the footage suggested an argument took place before the man left the area.
Additional accounts were provided by two members of the public, neither of whom had any connection to Mr Shearwood or B. While neither witness saw the incident itself, both observed the immediate aftermath. They reported hearing raised voices and saw B on the floor. Once B was helped up, they said she retaliated by pushing Mr Shearwood. They also recalled hearing him say, ‘you pushed in, you’re the one who pushed in line'.
Around this time, the fire brigade became aware that B had decided not to press criminal charges against Mr Shearwood - it knew that the CCTV footage would be destroyed by the supermarket after 30 days because it was not required for a police investigation. However, it didn't tell Mr Shearwood.
Following the conclusion of the local management investigation, the matter was referred to an HR adviser, who invited Mr Shearwood to attend an investigation meeting. Although he did not attend, he submitted a written account of the incident, denying that his actions amounted to assault and expressing confidence that the CCTV would exonerate him. The HR adviser concluded that, on the balance of probabilities, the allegation was substantiated.
Mr Shearwood was invited to a disciplinary hearing, where it was alleged that he had physically assaulted a member of the public and consequently brought his employer into disrepute. Mr Shearwood continued to deny that he assaulted B although in mitigation his trade union rep explained that he was remorseful for what had happened. The disciplinary chair, however, considered that he had provided inconsistent accounts of the incident and determined that the allegation was proven.
Notably, the disciplinary chair didn't stop there; she went on to consider a character reference provided by Mr Shearwood's supervisor, which had not been shared prior to the hearing. While the disciplinary procedure did not formally provide for character references, it was common practice for line managers at the fire brigade to provide them in such a situation. The character reference stated that Mr Shearwood's interpersonal skills could be lacking, that he was sometimes difficult to engage with and manage when questioned or challenged - among other similar observations. Mr Shearwood described the reference as a ‘character assassination’. It did not account for his clean disciplinary record nor that he had been shortlisted for promotion. He also disclosed that he was neurodiverse and raised concerns about a lack of support. The disciplinary hearing was adjourned to allow for further enquiries to be made with occupational health (although we don't know what they said).
At the reconvened hearing, Mr Shearwood was dismissed. The dismissal letter cited the CCTV account and witness statements as consistent with him having ‘shoulder barged’ B, a lack of corroborating evidence for his version of events, and that he hadn't shown any remorse. The letter explained that Mr Shearwood did not have a diagnosis of neurodiversity, and that even if he had, there were no reasonable adjustments that could sufficiently mitigate the risk of him assaulting another member of the public or a colleague in the future.
While Mr Shearwood appealed, the dismissal was upheld. He brought claims of disability discrimination and unfair dismissal, as well as some other claims.
Employment tribunal
The tribunal held that Mr Shearwood's neurodiversity did not amount to a disability because he had not provided evidence about the impact on his ability to carry out day-to-day activities. His disability discrimination claim was therefore dismissed.
The tribunal then went on to consider the unfair dismissal claim and found that Mr Shearwood was dismissed because of his alleged conduct, a potentially fair reason - even though that conduct took place outside the workplace. Next, it considered if the fire brigade acted reasonably in treating his conduct as a sufficient reason for dismissal.
The tribunal found that the fire brigade genuinely believed that Mr Shearwood was guilty of misconduct and that it was within the range of reasonable responses for the disciplinary chair to have found the allegation proven but only up to the point that the character reference was provided.
Once the reference was provided, the tribunal considered that the disciplinary process was procedurally flawed because:
- A reasonable employer would not depart from its disciplinary procedure to consider a character reference.
- Notwithstanding this, a reasonable employer would have disclosed a copy of the reference - particularly given its negative content - before the hearing.
- Given Mr Shearwood's clean disciplinary record and as he had been shortlisted for promotion, the negative reference provided by his supervisor should have indicated that it may be biased.
- As there was cause to doubt the supervisor's impartiality, a reasonable employer would have reassessed the weight it should attach to the CCTV evidence because it was the supervisor who took the statement from the supermarket manager. However, the appeal failed to do this.
The tribunal also identified issues with how the CCTV evidence was handled. The fire brigade knew that the footage would be deleted by the supermarket after 30 days, as it was not required for a police investigation, yet it failed to inform Mr Shearwood. As a result, he was denied the opportunity to access the footage directly or to question the store manager about its contents before it was destroyed. This was a particular issue because the tribunal found the statement taken from the supermarket manager was incomplete - it focused primarily on Mr Shearwood's actions, with little reference to B's behaviour, and there was no clarification as to what was meant by the term ‘shoulder barge’.
The tribunal also found that the dismissal was not a proportionate sanction in the circumstances. A reasonable employer would have accepted that Mr Shearwood was remorseful (given his trade union's comment) and would not have linked his neurodiversity to any alleged risk of violent behaviour.
Consequently, Mr Shearwood won his unfair dismissal claim. A separate remedy hearing will now take place to determine the level of compensation.
Key takeaways for employers
This case illustrates that it can be potentially reasonable to dismiss an employee for misconduct occurring outside the workplace, provided there is a sufficiently strong link between the conduct and the employment relationship. Misconduct outside work is most likely to affect the employment relationship where the nature of the employee's role or the employer's reputation is at stake - particularly in cases involving social media, violence, or dishonesty.
The usual rules - that any disciplinary action must be fair and reasonable - still apply. A thorough investigation is essential to establish the full facts. Statements should be carefully reviewed, and follow-up questions asked to ensure a complete understanding of the situation. If CCTV footage is relevant and within your control, steps should be taken to preserve it. Where footage cannot be obtained - as was the case here - it is important to ensure a detailed record is available for the employee to scrutinise.
It is vital to follow your organisation's disciplinary procedures and the Acas code of practice. In this case, the process deviated from standard practice by allowing character references - an unusual step that may raise procedural concerns. Any evidence relied upon must be disclosed to the employee in advance of the hearing, giving them a fair opportunity to respond.
This case also highlights the importance of impartiality throughout the disciplinary process, from the initial investigation to the final decision and that the appeal stage is particularly critical - it provides a final opportunity to address any flaws in the original decision and process, so it should not be overlooked.
Finally, it is important not to discount an employee's neurodiversity just because they do not have a diagnosis. While in this case, the tribunal found that it did not amount to a disability, each case is different. To read more about this, see our article ‘Do you need to wait for a diagnosis before making reasonable adjustments for a neurodivergent employee?’.
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