An employee was asked to attend a disciplinary meeting after threatening to kill another colleague; yet during the meeting he became aggressive and was escorted out. Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise on what should be done next.

The question:

Following being suspended from work, one of our employees was invited to a disciplinary hearing because he had threatened to kill one of his colleagues at work. Towards the end of the meeting, he became very aggressive and was throwing things around. As a result he was escorted out of the building by security. The outcome of the meeting would have been something like giving him a final written warning based on the fact that, prior to this, he had a clean record and had been with the company for 2 and a half years.

With the turn of events, where do we go from here? Can we hold a meeting in his absence and send him the decision in the post, since none of the managers are willing to have another meeting with him based on his aggressive behaviour. If he is dismissed on this basis, would that be seen as being fair?

Legal advice:

Esther Smith, partner, Thomas Eggar

This is a tricky one, and without having been present at the meeting and knowing the true extent of his behaviour, it is difficult to give a definitive answer.

Technically, you should impose whatever you feel is the appropriate sanction for the issues giving rise to the disciplinary, and then progress a separate disciplinary for the conduct / behaviour at the hearing itself. If he is issued with a final written warning then this will result in dismissal if the allegations are upheld.

However, if it is true that all the managers are genuinely in fear of him and unwilling to face him again, then you may be able to argue that the modified statutory dismissal procedure should apply in this situation, which allows an employer to make a decision in an employee's absence.

Even if you did want to use the modified procedure, you would still need to inform the employee that you were considering dismissal as a result of his behaviour at the meeting, and tell him that you would be holding the meeting in his absence and explain why.

If all the other employees are stating that they will not work with him going forward, this in itself may give you grounds to consider 'some other substantial reason' dismissal.

My view would be to proceed cautiously and avoid using the modified procedure unless you absolutely have to.

Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information please visit Thomas Eggar.

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Martin Brewer, partner and employment law specialist, Mills & Reeve

What you need to be careful of is confusing two things. You say that this employee would probably not have been dismissed for his threat to kill because he had a clean record. However, you now want to consider dismissal because of his behaviour at the disciplinary hearing, which clearly wasn't concluded. But he still has the same clean record.

Two things seem to me to emerge from this. First, was the behaviour at the disciplinary sufficiently serious to warrant dismissal in and of itself? If not, does it warrant dismissal taken together with the original threat to kill?

The difficulty for you is that on the face of it, the employee has not had an opportunity to explain why he has behaved in the way complained of and that is a fundamental element of a fair process.

In this sense, the employee has put you in a very difficult position. Any reasonable process would seem to require that there is, at some point a meeting with the employee, whether before or after dismissal, at which there can be a discussion about the sanction imposed. The problem is exemplified by the statutory dismissal procedure which allows you, using the so-called modified procedure, to dismiss an employee without holding a meeting. However, the second step of the process is to hold an appeal meeting if the employee asks for an appeal.

Without any meeting at all you may have an automatically unfair dismissal, although there is an exception discussed below. The other issue is that this employee seems to have changed his character quite dramatically and it may be that there are external factors which have led to this aberrant behaviour. You clearly therefore have a number of options.

First, you can hold the hearing in abeyance whilst you see if you can get to the bottom of any problems the employee has which could have given rise to the aggressive behaviour. For example, you could send him for an occupational health report. Depending on the result you could try to rehabilitate him back to work or you may move to dismiss (assuming there's no reasonable explanation for his unacceptably aggressive behaviour).

Second, you could endeavour to follow a normal disciplinary procedure. This would require you putting in place security measures to protect staff who have to deal with this employee.

Third, you could simply follow the statutory 'modified' procedure (letter dismissing, appeal meeting with appropriate security).

Finally, you could do everything in writing but you must be aware that this may be automatically unfair and you will have to rely on the argument that if you had followed a fair procedure the employee would have been dismissed anyway. It seems to me self-evident that this will be a difficult argument to run if you haven't at least tried to ascertain why the employee has behaved so radically out of character.

The exception to the need to hold a meeting (at least in the statutory procedure thus avoiding an automatically unfair dismissal) is contained in the 2004 Dispute Resolution regulations. Regulation 11 says that in certain circumstances if you do not commence the statutory procedure it won't apply at all.

The relevant circumstances referred to above are:

• The employer reasonably believes that commencing the procedure would create a significant threat to people or property, or:
• That you have already been subject to harassment and have reasonable grounds to believe that if you start the procedure or comply with any requirements of it you will be subject to further harassment.

In this context, harassment includes creating an intimidating or hostile environment.

Martin Brewer can be contacted at: martin.brewer@mills-reeve.com

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