Case Studies

Case Studies

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A real fight for justice

Published 29 September 2021

It’s tempting to think there can only be one outcome for an employee involved in a violent incident that leaves someone else with a serious injury.

Shopping centre security guard Gus was involved in a physical altercation with a male shopper, which left the man with a broken nose and cuts and bruises.

His employer considered it a potential act of gross misconduct that could lead to dismissal.

The incident was captured on CCTV and Gus was immediately suspended from work.

Police later received a complaint from the man, Gus was interviewed by officers, but no further action was taken.

However, Gus’s employer carried out its own disciplinary investigation.

Gus had over 12 years’ service. He had commendations from his bosses for dealing with violent incidents and for one in which his quick thinking and first aid skills helped to save the life of a child.

Gus was invited to a disciplinary hearing. The allegation was assaulting a member of the public and causing injury.

Adamant Gus said the force used was reasonable and necessary. His employer maintained it was excessive.

Worried Gus contacted the Castle Associates Employee Support Centre.

Our representative discussed the case with Gus, reviewed company policy on the use of force and the CCTV footage.

Gus wanted to clear his name, as a former soldier his reputation was very important.

The mitigation in the case would be significant. Crucial in this was the lead up to what occurred.

A CCTV operator had alerted Gus, via his radio, to an incident in which a man had assaulted a woman inside the shopping centre. He then chased her into the car park and was attacking a female security guard who intervened.

Our representative requested that footage from the employer, and both he and Gus reviewed it. He also asked that the member of staff assaulted attend the hearing as a witness.

Section 12 of the ACAS Code of Practice allows employees to call witnesses to attend a disciplinary hearing.

At the hearing our representative referred to the CCTV footage to highlight the level of violence used against a member of the public and staff. He used it to show the serious risk the man posed to others including Gus.

Appearing as a witness the female security guard explained how she feared for her life when attacked while trying to help.

The footage showed Gus arriving on the scene as the woman who was initially being attacked was fleeing and his colleague was huddled in a ball on the floor being punched and kicked.

Our representative said it was a highly volatile, fast-moving, unpredictable and violent situation.

Using information provided by Gus, he added it was one in  an increasing number of violent attacks on staff, which the employer had done little to address.

He said Gus was entitled to use reasonable force to protect himself and others from harm, and he showed tremendous restraint in dealing with the incident.

Under a flurry of punches Gus was able to wrestle his attacker to the ground and pin him face down until police arrived.

The hearing was told the level of force used by Gus, if viewed objectively, was perfectly reasonable in the circumstances, as he acted in defence of himself and others. 

Our representative maintained company policy and training allowed Gus to use reasonable force, and he acted appropriately in the situation he found himself in.

The injury caused to the customer was said to be unfortunate and a result of an accident when he fell to the ground.

Our representative said the fact the police took no action against Gus was the best evidence he did not commit an act of assault.

He referred to Gus’s long service, exemplary disciplinary record and commendations he had received as a testament to his character and professionalism.

Our representative presented a comprehensive case to argue Gus should be cleared of the allegation.

The disciplinary hearing chair asked Gus a number of questions about the incident and CCTV.

Gus made it clear he simply wanted to clear his name and be allowed to leave without a stain on his character.

He was eventually cleared of the allegation and allowed to leave with a settlement agreement

A reputation built on success

For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 

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