The Employment Appeals Tribunal decision this month in the case of an employee dismissed for spitting back at an abusive member of the public in a “moment of madness” provides some useful reminders when carrying out a disciplinary process.

The employee, Aisha Olukoya, was a ticket inspector for Veolia when she was confronted by a man begging outside Tallaght Luas station. The man was racially abusive and spat at Ms Olukoya. Ms Olukoya had an “exemplary” work record for six years. Veolia Ireland Limited dismissed her as she spat back at the man. Veolia claimed that Ms Olukoya’s conduct brought the company into disrepute and amounted to gross misconduct. Veolia also stated that it provides training to employees on how to deal with conflict situations.

The Tribunal said that the case came down to the “proportionality” of the disciplinary sanction. The Tribunal re-instated the employee to her position with Veolia.

There are some key reminders arising out of this case:

1. For acts of gross misconduct, many employers rely on the ground that the employee brought the company into disrepute. Employers should be aware that “bringing the company into disrepute” as a ground for dismissal may be difficult to defend if it is the only ground relied upon to justify a dismissal. This is especially relevant where an employee has an exemplary work history and reacted in the heat of the moment.

1. The Employment Appeals Tribunal (“EAT”) in the UK has a similar outlook on “bringing the business into disrepute”. In the UK case of Taylor v Somerfield, where employees’ inappropriate behaviour was posted on You Tube, the EAT noted that it would be difficult to justify a decision to dismiss an employee on the grounds that the business has been brought into disrepute without a sufficient investigation and evidence of such damage to the employer’s reputation. This clearly places a greater onus on an employer to prove that the employee’s acts damaged the company.

1. Separately, although a determination of re-instatement by the Tribunal is rare, it is historically granted where an employee reacts in the heat of the moment. Similar to the EAT’s decision in Veolia, an example of this can be seen in the old case of Snia Ireland Limited v Connolly. In Snia, the Tribunal ordered re-instatement where a security guard had left his post because his child was involved in an accident. In that case, the Tribunal stated that the employee’s misconduct must be measured in the context of the employee’s act, not just its consequences or potential consequences to the employer. The Tribunal also said that an act of an employee can cause damage or risk to the employer but it need not be misconduct. The Tribunal further noted that mitigating factors such as a family emergency and the good record of an employee, made the offence stand out as an isolated one, which, though serious in degree, was not fatal to the continuance of the relationship.

In summary, employers need to ensure that the act is one of gross misconduct and be able to further demonstrate how the company’s reputation has been impacted. Although a determination of re-instatement from the EAT is rare, it will often be granted in a situation where an employee has an unblemished work history and reacted to an incident in the heat of the moment.