Ms K Herbert v Main Group Services Ltd (3310773/2022)
What happened?
Ms Herbert was an office manager at Main Group Services Ltd, a small scaffolding and brickwork firm. Two of her managers were also her brother-in-law and sister-in-law. In May 2022, she came across paperwork setting out the cost of her employment and, worried about her job, asked to bring a meeting with one of her managers forward. The meeting became heated, and she made a one-off comment calling both managers “dickheads”.
She was dismissed on the spot and told to leave the premises.
The company later said she had been suspended, not dismissed. It then ran a disciplinary process and, in July 2022, dismissed her for gross misconduct, this time citing performance concerns and an unauthorised change to her contract as the reason.
What was claimed and decided?
Ms Herbert brought claims for unfair dismissal, wrongful dismissal (unpaid notice) and holiday pay. The tribunal found she had in fact been dismissed on the day of the meeting in May 2022, and that the real reason was what she said in the meeting. It described the later disciplinary process as contrived to make it look as though a fair procedure had been followed prior to dismissal.
The dismissal was therefore unfair on two fronts:
- She had no warning and no chance to respond, which made it procedurally unfair.
- It was also outside the range of reasonable responses open to a reasonable employer: it was for a single remark made in the heat of the moment, and she had no history of similar behaviour. Her own contract said that “insulting or abusive language” could only lead to dismissal after a prior warning, and did not list it as a potential gross misconduct offence.
The wrongful dismissal claim also succeeded as it was found that she had not committed a fundamental breach of her contract which would entitle the company to dismiss her without notice. The holiday pay claim did not.
The value
Ms Herbert was awarded £15,042.81 in compensation, which included a 25% uplift for the company’s failure to follow the ACAS Code of Practice on disciplinary and grievance procedures. The company then appeared to wind down and move its work to a similarly named business rather than pay Ms Herbert the amount awarded. The tribunal made a costs order of £14,087.50 in favour of Ms Herbert against the company, taking the total to around £29,000.
Top lessons for employers
- A single swear word or insult does not automatically amount to gross misconduct. Context and frequency matter.
- Check what your contract, policies and handbook say before you make a decision on sanction. If they state that the type of conduct will usually be regarded as ‘misconduct’ for which the sanction will usually be a warning for a first offence, treating it as gross misconduct will be hard to defend. To strengthen your contracts and policies , take a look here!
- Never dismiss someone on the spot in the heat of the moment. Follow a fair process, however clear cut it feels. This includes doing an independent investigation and giving the individual an opportunity to respond to the matter at a disciplinary hearing first.
- Do not try to build a fair procedure after the event. Tribunals see through it, and it costs you credibility.
- Engage properly with settlement offers, and never try to avoid paying an award made by a tribunal by dissolving the company. That is what turned a £15,000 award into a £29,000 one.
How can Thrive Law help?
We help employers deal with conduct and disciplinary issues before they become claims, from getting contracts and policies right to guiding you through a fair process when something goes wrong. If you are ever unsure whether something is a ‘dismissal-able’ offence, it is a lot cheaper to seek legal advice on this first. For more Case Summaries such as this one, take a look at our page here!.
For more employment law tips and tricks and case summaries just like these ones, take a look at Jodie Hill’s YouTube.
Conclusion
The point is not that swearing at work is fine. It is that how you react matters. Conducting a fair disciplinary process will protect your business best.
Facing a conduct or disciplinary issue? Get in touch on 0113 869 8101 or enquiries@thrivelaw.co.uk before you act.
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