When incidents occur outside of the workplace, employers often face a difficult question: can they take disciplinary action, or even dismiss an employee for behaviour that happens off duty? The recent case of R Shearwood v London Fire Commissioner illustrates how what began as a supermarket visit whilst off duty ended with an unfair dismissal finding.
Background
Ryan Shearwood was employed by the London Fire Brigade as a Hydrant Technician from 15 August 2019, until he was summarily dismissed for gross misconduct on 18 April 2023, following an incident which took place on 10 October 2022.
The Incident
On 10 October 2022, Shearwood 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 will refer to as “the complainant”.
Shearwood states that the complainant pushed to the front of the self-checkout queue and, when he challenged her, she ignored him. He claimed that when she leaned into him, using her body weight to move Shearwood aside to get past, he extended his elbow to maintain balance. The complainant, however, alleged that Shearwood physically assaulted her, pushed her to the ground and made derogatory statements about her.
Although Shearwood was not in uniform, he had arrived in a fire brigade vehicle and was therefore identified as a London Fire Brigade employee. The complainant subsequently reported the incident to the London Fire Brigade.
The Investigation and Dismissal
Following the complaint, Shearwood’s supervisor began a ‘local management investigation’. As part of the investigation, Shearwood’s supervisor contacted the store regarding the CCTV recording of the incident, but was informed that due to data privacy reasons, this could not be released. Instead, the CCTV evidence was viewed by the store manager, who verbally relayed what he had seen; 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.
As part of the local management investigation, Shearwood’s supervisor also obtained an account of what happened from two members of the public. The witnesses did not see the actual altercation occur but confirmed seeing the individual on the floor and hearing raised voices.
On 8 November 2022, Shearwood was invited to a disciplinary hearing following the allegations that he had physically assaulted a member of the public, thereby bringing his employer into disrepute. During the hearing, the disciplinary chair considered a character reference from Shearwood’s supervisor, which had not been disclosed to him before the hearing. The reference suggested that Shearwood could be difficult to engage with and manage when challenged.
The disciplinary chair concluded that Shearwood had provided inconsistent accounts and determined that the allegation was proven. At a reconvened hearing, Shearwood was dismissed. The dismissal letter made reference to the CCTV footage, witness statements which suggested that he did ‘shoulder barge’ the complainant and inconsistent evidence from Shearwood.
Tribunal decision
The Tribunal upheld Shearwood’s claim for unfair dismissal. The Tribunal accepted that the London Fire Brigade had a potentially fair reason for dismissal, misconduct, even though it occurred outside the workplace. It also found that the London Fire Brigade genuinely believed that Mr Shearwood was guilty of the alleged conduct.
Nevertheless, several procedural and evidential failings meant that the dismissal was not within the range of reasonable responses. The Tribunal identified that:
- The disciplinary procedure was breached – by considering a character reference that was neither disclosed to Shearwood nor provided for within the employer’s policy.
- The character reference appeared biased – as it came from the same supervisor who led the initial investigation and collected the statement about the CCTV footage.
- The dismissal was disproportionate – given Shearwood’s previously clean record, evidence of remorse, and lack of substantiated risk of violent behaviour.
Lessons for employers
This case underlines several key points for employers when dealing with alleged misconduct outside of work.
- Follow your disciplinary procedure – Introducing undisclosed evidence or departing from established procedures can render a dismissal unfair.
- Handle evidence transparently – Where evidence (such as CCTV) exists, employees must be given a fair opportunity to review and comment on it.
- Proportionality matters – a single incident outside of work, particularly where the employee has an otherwise clean record, may not justify dismissal.
How we can help
For further information, or to discuss the issues raised within this case, please contact us to speak to a member of our Employment Team.
