Mr D Jon v The Co-Operative Group Ltd: 3312343/2021
EMPLOYMENT TRIBUNALS
Case No 3312343/2021
Between
Mr D JonClaimantThe Co-Operative Group LtdRespondent
Before
Employment Judge SawardIn person for claimantMs K Anderson (instructed by Counsel) for respondentDate 17 June 2022
JUDGMENT
[1]The name of the respondent is amended by consent from ‘Funeral Services Ltd (Cooperative Funeralcare)’ to ‘The Co-Operative Group Limited’.[2]The respondent’s application to strike out the claim on the grounds of the claimant’s failure to comply with Case Management Orders and that it has not been actively pursued, is refused.[3]The complaint of unfair dismissal is not well founded and is dismissed.
REASONS
[1]The claimant, Mr Damien Jon, was employed by the respondent from 20 July 2012 until his dismissal without notice on 3 March 2021. At the time of his dismissal the claimant was an Embalmer at the respondent’s Barrack Road funeral home in Northampton.[2]By a claim form presented on 25 June 2021 the claimant claims that his dismissal was unfair within section 98 of the Employment Rights Act 1996 (‘the 1996 Act’).[3]In a response filed on 12 August 2021 the respondent resisted the complaint. In essence, the respondent maintains that the claimant was dismissed following the investigation of an incident on 8 January 2021 in which the respondent concluded that the claimant had assaulted a colleague. The respondent asserts that its decision to dismiss the claimant fell within a range of reasonable responses of a hypothetical reasonable employer. Preliminary matters[4]Before hearing any evidence there were several preliminary issues requiring resolution.[5]The claimant brought his claim against ‘Funeral Services Ltd’ trading as ‘Cooperative Funeralcare’. A response was filed by ‘The Co-operative Group Limited’ who acknowledged being the claimant’s employer at all material times. At the start of the hearing, both parties consented to the correction of the respondent’s name to ‘The Co-operative Group Limited.’ An amendment shall be made to that effect.[6]In the claim form, the claimant ticked the box to indicate that he was making another type of claim besides one of unfair dismissal. He describes the respondent as ‘negligent’ in allowing a vexatious member of staff to make multiple allegations over a period of months. I clarified at the start of the hearing that the Tribunal has no jurisdiction to address a negligence claim. The claimant confirmed that the comments were made in the context of his unfair dismissal claim with a view to demonstrating unreasonableness on the part of the employer.[7]The Tribunal file contains an ‘Unless Order’ dated 23 March 2022 made under Rule 38 of the Employment Tribunals Rules of Procedures 2013 whereby the claim would stand as struck out without further order unless the claimant explained in writing to the Tribunal and respondent by 9 April 2022 why his claim should not be struck out. Following investigations by the administration, it transpired that the Order was not in fact served. Therefore, it is of no effect and shall be disregarded.[8]It emerged that the respondent had made an application to strike out the claim on 15 March 2022 which had not been finally disposed of. The application had followed the Notice of Hearing on 18 November 2021 which included Case Management Orders that the claimant had not complied with.[9]The Tribunal issued a strike out warning under Rule 37 of the 2013 Rules advising the claimant that the Tribunal was considering striking out the claim for non-compliance with the Case Management Order and because the claim had not been actively pursued. The Claimant was given until 27 May 2022 to object to the proposal with reasons or to request a hearing to make submissions.[10]By letter dated 26 May 2022 the claimant replied to the Tribunal explaining that he had gained new employment in the funeral trade which is overwhelmed with work. He had also suffered a couple of bouts of illness. In addition, the claimant had found his solicitors to be less than helpful and his case was being reviewed by another firm. A request was made to postpone the hearing as the claimant suspected that the second firm would not have had enough time to prepare. The respondent opposed the application for postponement by email sent on 27 May 2022.[11]By Order dated 6 June 2022, the application for postponement was refused.[12]At the hearing, the respondent pursued, and renewed, the application for strike out of the claim under Rule 37(1)(c) and (d) of the 2013 Rules on the grounds: (c) of non-compliance with an order of the Tribunal, namely the Case Management Orders of 15 November 2022. (d) that the claim has not been actively pursued.[13]The primary reason relied upon was ground (c). The respondent’s solicitors had made various attempts to communicate with the respondent to secure compliance with the Case Management Orders by email and post. No response was received to any communications. The respondent considers the claimant’s reasons for non-compliance with the Orders expressed within his letter of 26 May 2022 to be wholly inadequate and lacking in any detail. Furthermore, the respondent contended that it would be unfair and unjust to allow the claim to proceed in the absence of any witness statement or schedule of loss from the claimant. Both documents are central to the case and fundamental to fairness. In the respondent’s view, it would be contrary to the overriding objective to proceed.[14]In response, the claimant said he was unaware of any attempts by the respondent to contact him. He did not realise he needed to prepare a witness statement although he had received the Notice of Hearing with the Case Management Orders. He was relying upon his solicitors to handle all matters on his behalf.[15]I decided that the application should be refused. The overriding objective in Rule 2 of the 2013 Rules is to enable the Tribunal to deal with cases fairly and justly. The key question for the Tribunal was whether a fair trial was still possible. The claimant had responded to the strike out warning albeit in generalised terms. At the outset, the claimant had produced a written summary of his case extending to two sides of A4 paper which could be treated as his witness statement. The respondent accepted that the claimant was an employee who had been dismissed. The burden of proof to show the reason or principal reason for dismissal and that it was a potentially fair reason under section 98(1) and (2) of the 1996 Act rests with the respondent. The respondent is legally represented. In the circumstances, a fair hearing could still be achieved and the weight of prejudice falls very much in the claimant’s favour. Issues[16]Having dealt with these preliminary issues, I agreed with the parties the issues for the Tribunal to decide.[17]Whilst arguments were raised by the claimant in his summary concerning the investigation process, he confirmed that he does not seek to argue that there was a breach of the ACAS Code on Disciplinary and Grievance Procedures. His comments were intended to demonstrate unreasonableness in the reasons for the respondent’s findings.[18]Without a schedule of loss it was likely that further directions and a separate remedy hearing would be required if the claim of unfair dismissal was well founded. Accordingly, the hearing focussed on issues as to liability only which in unfair dismissal claims have two core elements:18.1 What was the reason or principal reason for dismissal? The respondent says the reason was conduct. The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct.18.2 If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether:18.2.1 there were reasonable grounds for that belief;18.2.2 at the time the belief was formed the respondent had carried out a reasonable investigation;18.2.3 the respondent otherwise acted in a procedurally fair manner;18.2.4 dismissal was within the range of reasonable responses. Procedure, documents and evidence heard[19]The Tribunal heard evidence from the claimant who was unrepresented. His written summary was taken as his witness statement which he confirmed to be true to the best of his knowledge and belief.[20]The respondent was represented by Counsel who called two witnesses; Christine Heslop, Regional Operations Manager who was the dismissing officer for the respondent and Timothy Bloomer, Head of Operations who was the appeal officer.[21]All witnesses gave evidence under sworn affirmation.[22]The respondent produced witness statements from Christine Heslop and Timothy Bloomer and a ‘proposed joint bundle’ composed of some 289 pages together with separate index and ‘cast list’ of individuals named in the papers and their job titles. Fourteen pages of the bundle were substituted during the hearing. The replacement pages are typed notes of a disciplinary meeting attended by the claimant on 25 February 2021. Changes and additions to the text made by the claimant are highlighted in red. The claimant confirmed that he had seen all documents within the bundle.[23]On the day of the hearing the respondent produced a further electronic bundle of 58 pages in support of its application for strike out.[24]Evidence was considered by the Tribunal on liability only.
Findings of fact
[25]The correct name of the respondent is ‘The Co-Operative Group Limited’.[26]It is undisputed that the claimant had the status of an employee or that he was dismissed within the definition of section 95 of the 1996 Act.[27]The claimant was employed by the respondent as a full-time Embalmer. Jeanette Stanley was a colleague of the claimant who worked as Funeral Service Crew.[28]Ms Stanley had made a series of complaints/allegations about the claimant since early in June 2020. No action was taken against the claimant in respect of these matters until an incident occurred on the afternoon of Friday 8 January 2021, described by both parties as ‘the fridge door incident’. The claimant was working alone in the temperature controlled unit (‘TCU’) at the Northampton Care Centre when a spare metal tray slipped to the floor causing, in the claimant’s words, “an almighty bang”. Quickly after and having heard the loud bang, Ms Stanley rushed to the scene. As she opened the TCU door she asked the claimant if he was alright.[29]There is direct conflict in the accounts between the claimant and Ms Stanley as to what happened next. Ms Stanley reported that the claimant responded by shouting at her “You don’t fucking get it do you? Forever means forever.” He had then walked across the room towards her saying “I know your game. I’ve told you I’m never going to speak to you again.” Ms Stanley says she then felt a sharp poke in her arm, followed by a push. The claimant pushed her out of the door swearing at her as he did so. Ms Stanley acknowledged that she swore back at the claimant.[30]Ms Stanley claimed that a bruise on her arm with the mark of three fingers was caused by the claimant. She sought managerial approval to go home early and subsequently reported the incident to the Police. A photograph of a bruise to Ms Stanley’s arm is produced.[31]The claimant’s account is that he had replied to Ms Stanley that she did not think of his welfare when she made six false statements and so “please do not concern yourself about me at all.” When Ms Stanley became argumentative the claimant said “please go away as I am not interested”. He asked for a second time for her to go away and then walked towards her to reach for the handle of the door and told her to “get lost”. He denies poking or pushing Ms Stanley in any way.[32]According to the claimant, Ms Stanley slammed the door so hard it hit his hand grazing the skin. A photograph of an injury to his hand is produced.[33]Ms Stanley raised a grievance against the claimant on Monday 11 January 2021 alleging assault. She was interviewed at 9.30am by Daryl Westwood, the manager appointed as investigation officer, in the presence of one of the Funeral Directors and a human resources representative. The same manager and HR representative proceeded to interview the claimant at 11.30am.[34]They conducted other interviews that same day with Paul Laing of the Funeral Service Crew and Robert Laurie, Ceremonial Crew, both of whom had been in the vicinity. Mr Laing said he had heard both the claimant and Ms Stanley shouting. He saw Ms Stanley stood in the doorway and heard her say “Don’t shove me” but he did not see anything more. Mr Laurie said he had followed Ms Stanley and saw her go in the TCU and heard her ask the claimant if he was ok to which he responded “Don’t you start” and “forever means forever”. Mr Laurie did not see Ms Stanley being pushed but heard her say something along the lines of “Don’t touch me” and the door slammed shut afterwards.[35]The claimant maintains that if Mr Laurie saw the door being slammed then he must have seen inside and witnessed the incident. He argues that Mr Laurie’s account is unreliable.[36]Later in the day on 11 January 2021 the claimant was called back to a meeting and suspended pending investigation.[37]The claimant attended a disciplinary meeting on 28 January 2021 with Christine Heslop, the Regional Operations Manager for Anglia and Midlands who was accompanied by a note taker. The claimant confirmed he was happy to proceed without a colleague or representative being present. The account by Ms Stanley was put to him. The claimant claimed that Ms Stanley only screamed “Don’t push me” because she knew people were around. Ms Heslop confirmed that the claimant remained suspended whilst her investigation continued.[38]The claimant complained of a succession of allegations made against him by Ms Stanley. He alleges that Jeanette Stanley was deliberately seeking to secure his dismissal.[39]Mr Laurie and Mr Laing were both re-interviewed on 3 February 2021, followed by Ms Stanley.[40]Ms Heslop interviewed several other members of staff over the following days but none had witnessed the incident on 8 January 2021. All were asked about the two individuals involved in the incident and their relationship and how the interviewees got on with both. Questions were also put to staff about whether there was a bullying and harassment culture at the Northampton premises.[41]By letter dated 18 February 2021 Ms Heslop wrote to the claimant advising that her investigation was complete and inviting the claimant to a further disciplinary meeting. The purpose of the meeting was to discuss his “behaviour, specifically inappropriate and aggressive behaviour” and “unwarranted physical contact with a colleague” on 8 January 2021 as he went towards the exit of the cold room. Ms Heslop described it as seriously inappropriate, aggressive and intimidating behaviour which could be classed as assault. He was warned that the allegation is considered gross misconduct for which he could be dismissed without notice. The claimant was advised he could be accompanied by a colleague or Trade Union representative.[42]The meeting took place on 25 February 2021. The claimant was unaccompanied and confirmed he was happy to proceed. During the meeting each of the interview records obtained by Ms Heslop were disclosed to the claimant. The claimant contended that Ms Stanley’s account was a lie. Later that same day he submitted a list of the allegations made by Ms Stanley against him to Ms Heslop.[43]Having received the list, Ms Heslop interviewed the claimant’s manager, Daryl Westwood, on 1 March 2021 about previous incidents raised with him about the claimant.[44]Whilst the claimant says he had repeatedly mentioned feeling victimised by Ms Stanley and verbally told his manager that he wanted to pursue a grievance against Ms Stanley, he had never formally done so.[45]In a letter dated 3 March 2021 Ms Heslop confirmed her decision to summarily dismiss the claimant for gross misconduct. The conclusion drawn was that, on the balance of probabilities, the claimant had assaulted Ms Stanley by pushing her out of the doorway of the TCU. Ms Heslop advised that she had taken into account the claimant’s length of service and that his record is currently clean. However, a lower sanction was not appropriate.[46]In evidence, Ms Heslop said she had taken account only of evidence related to the incident on 8 January 2021 and that other complaints made against the claimant were background information only. The report to the Police was of “no relevance” to her decision.[47]The claimant appealed that decision on 11 March 2021. He raised three grounds of appeal:(1) the process was not fair and reasonable(2) the process was pre-judged and biased(3) the outcome was not fair and reasonable. These grounds were expressed to be on the basis that Ms Heslop had taken a prejudicial and biased view by not suspending Ms Stanley herself and taking statements from other staff regarding incidents or matters that occurred many years ago. He further contended that Ms Heslop ignored evidence in three statements proving that Ms Stanley had said she was going to get him sacked. Ms Heslop had, he claimed, also dismissed the other allegations made by Ms Stanley over the previous seven months which were all dismissed with no action.[48]A review was conducted by Tim Bloomer, Head of Operations for the Central Division. He interviewed the claimant on 18 March 2021. At the meeting the claimant expressed dissatisfaction that Ms Heslop had interviewed four colleagues with whom he had previously had “run ins”.[49]At the hearing the claimant was unable to identify which colleagues these were although he acknowledged having seen the meeting notes from all fourteen other people interviewed.[50]The appeal was rejected by Mr Bloomer by letter dated 9 April 2021 setting out his reasons. Mr Bloomer dismissed the assertion that Ms Heslop had specifically chosen to interview four colleagues with whom the claimant had ‘run ins’ as she had in fact spoken to a total of nine colleagues. In evidence, Mr Bloomer corrected this to a total of fifteen employees interviewed (including Mr Jon). He could not could account for the discrepancy but confirmed that he had seen the meeting records for all fifteen people.[51]Mr Bloomer had found that a larger number of colleagues from the care centre were interviewed to get a feeling for the culture from a bullying and harassment perspective. His letter set out the belief that the decision to dismiss was based solely on the one incident on 8 January 2021.[52]Whilst not raised in the grounds of appeal, Mr Bloomer made a finding that Ms Stanley was not out to get the claimant’s job as contended during his review meeting. Mr Bloomer found that as Ms Stanley was not a qualified embalmer (which would take around 3 years), she could not fill the claimant’s position. Ms Stanley had previously applied unsuccessfully to undertake an embalming training course. At the tribunal hearing the claimant took issue with Mr Bloomer’s conclusion on this point. He asserts that Ms Stanley was motivated by improving her chances of gaining access to the course if there were a shortfall of embalmers in the region.[53]I find that this was not made clear by the claimant when he was interviewed by Mr Bloomer. The record of the meeting (which the claimant had opportunity to correct) states that Mr Bloomer specifically asked if Ms Stanley “was trying to get you out of [sic] job so there would be an embalming position” to which the claimant is recorded as replying “yes”.[54]A major concern of the claimant expressed at the Tribunal hearing was the failure in the disciplinary process to take into account what he believes was a “sustained attack” on him by Ms Stanley. The parties disagree on the extent to which matters raised in the past were relevant to ‘the fridge door incident’. In addition, the claimant considers that if the respondent had intervened at a much earlier stage then matters would not have escalated and resulted in his dismissal.[55]The respondent has a disciplinary policy which is published on its intranet and accessible by all employees. Pursuant to the policy an employee would only be dismissed for a first incident of misconduct if an act of ‘gross misconduct’ is committed. An act of ‘physical violence or bullying’ is normally considered to be ‘gross misconduct’ within the examples listed. An appeal must be brought within seven calendar days.[56]Neither Ms Heslop nor Mr Bloomer previously had dealings with the claimant.
The Law
[57]Section 94 of the 1996 Act confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that he was dismissed by the respondent under section 95. This is also satisfied by the respondent admitting that it dismissed the claimant (within section 95(1)(a)).[58]Section 98 of the 1996 Act deals with fairness of dismissals generally. There are two stages within section 98. First, under section 98(1) the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Second, if the respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider under section 98(4), without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason.[59]In misconduct dismissals, there is well established guidance for Tribunals on fairness within section 98(4) in the decision in British Homes Store v Burchell 1978 IRLR 379. The Tribunal must decide whether the employer had a genuine belief in the employee’s guilt.[60]Then the Tribunal must decide whether the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation. In all aspects of the case (including the investigation, the grounds for belief, the penalty imposed, and the procedure followed in deciding whether the employer acted reasonably or unreasonably within section 98(4)) the Tribunal must decide whether the employer acted within the band of reasonable responses open to an employer in the circumstances. It is immaterial how the Tribunal would have handled the events or what decision it would have made. The Tribunal must not substitute its view for that of the reasonable employer (Iceland Frozen Foods Limited v Jones 1982 IRLR 439, Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23 and London Ambulance Service NHS Trust v Small 2009 IRLR).
Conclusions
[61]The requirements of section 95 of the 1996 Act are met as the respondent admits it dismissed the claimant within section 95(1)(a)) on 3 March 2021.[62]The first issue is what was the reason for the dismissal? There is no dispute that dismissal was on the basis of conduct arising from ‘the fridge door incident’ on 8 January 2021. I find that the reason for dismissal was misconduct.[63]The conduct of the employee is a potentially fair reason for dismissal under section 98(2)(b). The respondent has satisfied section 98(2).[64]My next consideration is the three stages in the Burchell case. The issue before the Tribunal is not whether the claimant did in fact commit the misconduct but whether the respondent reasonably believed that the claimant committed that misconduct and whether fair procedures were followed.[65]First, did the employer reasonably believe that the claimant committed the misconduct in that the respondent had a genuine belief in the employee’s guilt. I find that at the time of her decision, Ms Heslop, as the dismissing officer held a genuine belief that the claimant was guilty of misconduct. She clearly set out in the letter of dismissal that she believed, on the balance of probabilities, that the claimant had assaulted Ms Stanley by pushing her out of the doorway of the TCU and he had been the aggressor in the situation.[66]When Mr Bloomer upheld the dismissal on appeal, he explained in some detail why he was rejecting each of the claimant’s grounds of appeal. He also had a genuine belief that the claimant had committed misconduct.[67]Second, I must decide whether the employer held these genuine beliefs on reasonable grounds. In considering the objective test, I have in mind the evidence as understood by the respondent at the time the decision to dismiss was made. Any failure must be weighted in accordance with circumstances of that time.[68]Plainly, there was a confrontation in the doorway of the TCU between the claimant and Ms Stanley in which voices were raised. There was a direct conflict in their accounts on whether or not any physical contact was made. Both parties displayed bruising which may or may not have occurred in the incident. There were no witnesses who saw what actually happened.[69]Ms Heslop interviewed all employees who were in the vicinity on the day of the incident. There was some corroboration for Ms Stanley’s account in that both Mr Laurie and Mr Laing heard shouting and Ms Stanley saying words to the effect of “Don’t touch me”. Ms Heslop identified that the version of events of all three of those witnesses contradicted that of the claimant in terms of where Ms Stanley was stood at the time of the incident. Ms Heslop considered whether Ms Stanley had slammed the fridge door on the claimant and explained why she favoured Ms Stanley’s account. In doing so she noted anomalies in the claimant’s answers over the injury he claimed to have sustained and when it became apparent.[70]Ms Heslop confirmed in the dismissal letter that she had taken on board the claimant’s submission of how Ms Stanley had mentioned to a colleague that she wanted to get someone sacked, implying it meant the claimant. It was reasonable for Ms Heslop to conclude that this did not in any way change the events of the day.[71]There was sufficient evidence that the claimant had made physical contact with Ms Stanley for Ms Heslop’s belief to have been held on reasonable grounds. In rejecting the appeal, Mr Bloomer had reasonable grounds to believe that there was misconduct based upon those same findings.[72]Third, I must decide if the respondent carried out a proper and adequate investigation.[73]A methodical disciplinary process was followed. The complainant was interviewed straight away followed by the claimant and other potential witnesses. The claimant was suspended pending further investigations.[74]Faced with conflicting evidence, the investigating officer made further attempts to obtain clarity by conducting further interviews including with the claimant himself. The accounts from other witnesses were put to him with opportunity to respond before the decision to dismiss was taken.[75]When the scope of the interviews was broadened to other employees who were not in the vicinity on the relevant day, there would have been cause for concern if they had been limited to employees with whom the claimant had had ‘run ins’. That is not what occurred. A whole host of staff within the work area were interviewed. As it was, those individuals could only give generalised comments or on matters disconnected with the investigation and there is no indication that they influenced the findings in any way.[76]The claimant is critical of the respondent for failing to consider the incident in the context of the prior actions of Ms Stanley in bringing several complaints which had not resulted in any action against him. Ms Heslop found the previous allegations by Ms Stanley to be relevant background and so she did not ignore them. A decision could only rightly be taken on the incident itself given the nature of the allegation. Past history between individuals might give context and indicate how a situation came about. However, the grievance was one of assault and the employer’s focus had to be on whether the claimant had been guilty of misconduct by what happened during the incident. There was a reasonable investigation.[77]The claimant considers that the review undertaken by Mr Bloomer was flawed because of him finding that Ms Stanley could not have been intent on getting the claimant’s job. This had not been a ground of appeal but raised subsequently when the claimant was interviewed by Mr Bloomer. If Mr Bloomer misunderstood the point being made by the claimant, I find it unlikely to be an issue that could have influenced the outcome of his review. He was tasked with looking at whether there was reasonable basis to conclude that the claimant had acted in a way that amounted to misconduct warranting his summary dismissal. There is no evidence that Mr Bloomer was being “deceitful” as alleged by the claimant. The review addressed in some detail all the grounds raised by the claimant.[78]Although not raised before, the claimant put it to the Tribunal that the respondent should reasonably have awaited the outcome of the Police investigation. A different and higher standard of proof applies in criminal proceedings. Therefore, the absence of a prosecution is of no significance in assessing the reasonableness of the respondent’s actions. Moreover, the respondent could not be expected to delay its decision indefinitely pending the outcome of a Police investigation.[79]Different people carried out each stage of the disciplinary proceedings. At every stage, the claimant was advised of his right to be accompanied. He was given full opportunity to respond before the decision was taken. The outcome was reviewed on appeal as provided by the disciplinary policy.[80]I consider that the respondent acted in a procedurally fair manner.[81]The issue turns to whether dismissal was a fair sanction. When considering the fairness of the sanction the Tribunal must not substitute its own view for that of the employer but decide if the sanction fell within the range of reasonable responses. The Tribunal must decide whether a reasonable employer would have decided to dismiss the claimant for misconduct in the circumstances.[82]The claimant feels let down by the respondent because his manager had not taken his verbal complaints seriously of feeling victimised by Ms Stanley. That may be so, but no formal grievance was brought by the claimant. In any event, the incident giving rise to his dismissal was found to be his conduct on the day in question.[83]The decision of the respondent may seem harsh given the direct conflict in accounts and limited evidence in support of the complainant. Nevertheless, I am unable to conclude that no reasonable employer would have dismissed the employee in the circumstances. A reasonable employer could have done so.[84]It was clear from the respondent’s disciplinary policy that an act of physical violence is normally considered to be misconduct for which an employee could be summarily dismissed as a first incident. The decision taken was in line with the company policy.[85]I conclude that the claimant was not unfairly dismissed by the respondent within section 98 of the 1996 Act.