Can you call your boss a d**khead?

In the case of Ms K Herbert v Main Group Services Ltd, the Employment Tribunal (“ET”) considered that a one-off comment made by Ms K Herbert (the Claimant), in which she called her two managers “dickheads”, was not sufficiently serious to warrant summary dismissal for gross misconduct.

Background

The key facts to this claim are as follows:

• The Respondent was a scaffolding and brickwork company. At the time of the submission of the Respondent’s defence, the Respondent had six employees.
• The Claimant was employed by the Respondent in the role of office manager from 28 October 2018. Her managers were husband and wife Thomas Swannell and Anna Swannell (who also happen to be her brother-in-law and sister-in-law respectively).
• On 20 May 2022, Mr Swannell held a meeting with the Claimant. There is a dispute on what was said at this meeting. The Claimant relied on her witness statement as evidence, but the Respondent attempted to rely on a note that was allegedly written contemporaneously. This note was not disclosed to the Claimant prior to proceedings. The Respondent had no evidence that it was created on or around 20 May 2022, whether it was meta-data or reference to it in any investigation or disciplinary proceedings. For this reason, the ET did not consider it reliable as evidence and preferred the Claimant’s evidence in this account. This attempted reliance on the “contemporaneous” document, led the ET to cast doubt on the Respondent’s witness evidence for 20 May 2022 as a whole.
• The Claimant asserted that Mr Swannell criticised the Claimant’s work performance at this meeting, but many of the issues listed by Mr Swannell were not within the scope of her job role. Mr Swannell asked the Claimant what they could do to sort out this situation, and the Claimant stated that she confirmed her commitment to the Respondent and then said “if it was anyone else in this position they would have walked years ago due to the goings on in the office, but it is only because of you two dickheads [in reference to Thomas and Anna Swannell] that I stayed”.
• The Claimant alleges that Mr Swannell responded by saying “don’t call me a fucking dickhead or my wife”. She says that she attempted to explain to Mr Swannell that the comment had only been a joke with reference to Mr and Mrs Swannell being her in-laws. She states that, in response, Mr Swannell proceeded to dismiss the claimant without notice stating “that’s it you’re sacked, pack your kit and fuck off”. She says that she asked Mr Swannell to confirm whether he had terminated her employment with the respondent to which Mr Swannell confirmed “yes I have now fuck off”. She says that she then took items from her desk and left her office keys with Mr Swannell.
• Over June 2022 and July 2022, the Respondent attempted to contact the Claimant, informing her that she was “suspended” (rather than dismissed), and attempted to pursue a disciplinary investigation. The Claimant asserted she was already dismissed and refused to attend any meetings relating to this matter.
• On 22 July 2022, the Respondent “summarily dismissed” the Claimant for a mix of performance concerns and disciplinary matters.
• The ET found that, despite the Respondent’s attempt to “backtrack” and undergo a disciplinary process, the dismissal had already occurred on 20 May 2022 and the reason for the dismissal was the Claimant’s comment about Mr and Mrs Swannell. It was for the ET, therefore, to now assess whether this dismissal was fair.

The Law

Assessing unfair dismissal is a two-stage process:

1. Stage one is assessing if there is a potentially fair reason for dismissal.

Sections 98(1) and (2), Employment Rights Act 1996 (ERA) lists the potentially fair reasons which includes reasons such as capability, redundancy and, as was the case here, conduct.

2. Stage two is to assess the fairness of this decision.

The fairness or reasonableness is assessed on the facts or beliefs known to the Respondent at the time of dismissal.

Under section 98(4) of the ERA, an ET is to assess whether a dismissal is fair by determining whether the Respondent acted reasonably or unreasonably in treating the reason relied upon as a sufficient reason for dismissing the employee (determined in accordance with the merits of the case).

To assist with this, an ET must decide whether:

• The Respondent had a genuine belief in the Claimant’s misconduct:
• This genuine belief was held on reasonable grounds following a reasonable investigation; and
• The decision was within the band of reasonable responses an employer would have taken in these circumstances.

ET Decision

Reason for dismissal

As mentioned above, the ET determined that the initial dismissal of 20 May 2022 was the dismissal of the Claimant, and that it was clearly for the Claimant’s conduct of her comments against Mr and Mrs Swannell.

The ET disregarded the Respondent’s attempts to backtrack following the dismissal and determined that Mr Swannell had a reasonable belief based on reasonable grounds that conduct was the reason for dismissal.

Fairness

As the Claimant was summarily dismissed without any warning, and with no attempt to follow any disciplinary procedure prior to her dismissal on 20 May 2022, the ET was comfortable to determine that the dismissal was unfair on that basis alone.

Further, the ET also determined that the Respondent had not acted reasonably in all circumstances in treating the Claimant’s conduct as a sufficient reason to dismiss her.

The ET determined that the Claimant had made a one-off comment to her line manager about him and a director of the business (Mr and Mrs Swannell). This comment was made in a heated meeting. Whilst the ET concedes that the comment was not acceptable, it determined that this one-off comment would not amount to gross misconduct or misconduct so serious to justify summary dismissal.

Decision

The decision by the ET therefore was that the Claimant was unfairly dismissed.

Comment and points of interest

Due to the subject matter, there has been a lot of reporting on this case in the media. Some of the reports have missed the legal nuance of the assessment made by the ET in this matter, potentially as many were not written by legal experts. It is therefore important to clarify that the ET did not, by any means, find that it would not be misconduct (or gross misconduct) for an employee to call their supervisor a “dickhead”. The reason the dismissal was unfair was how unreasonably the Respondent acted on this matter.

The Respondent should have undertaken an investigation into the Claimant’s conduct at the point of the comment. It would be following a disciplinary hearing that the Respondent could have assessed the fairness of any sanction. The attempt to do this post-dismissal further undermined the Respondent’s reasonableness in their action.

It is also worth noting that the Respondent’s attempt to use unreliable documents severely hindered the credibility of their witness evidence, and there’s definitely a lesson to all parties involved in litigation to be honest and transparent in relation to the evidence they rely on. In this case, once the credibility of the Respondent’s evidence was lost, the Claimant’s narrative of events became the ET’s preferred summary for their findings.

Aside from all of the above, it is also worth mentioning that the ET made a costs order against the Respondent on the basis that their defence had no reasonable prospects of success and that the Respondent had acted unreasonably (it appeared that the Respondent had attempted to dissolve their company in order to avoid paying the Claimant her remedy).

Case reference: Ms K Herbert v Main Group Services Ltd: 3310773/2022