Is it unfair dismissal if an employer takes a “customer is always right” approach to allegations of misconduct?

We have all heard the expression “the customer is always right” and for many companies this lies at the cornerstone of their business.  However, in the recent case of Mr G Hardy v Topps Tiles plc , the employment tribunal concluded that the employer took this approach too far and that it had acted unfairly by dismissing an employee based on the unchallenged complaint of an aggrieved customer.  The tribunal also held that the employee’s dismissal amounted to discrimination relating to his disability.   

The law

In order for a dismissal to be fair, an employer must be able to show:

1. That the reason for dismissal falls within one of the “five potentially fair reasons” for dismissal. These are conduct, capability (which can include poor performance and ill health), redundancy, breach of a statutory requirement and “some other substantial reason”.

2. That it acted reasonably in all the circumstances.  Here, the tribunal will consider whether the employer followed a fair procedure and whether it was reasonable for the employer to dismiss for that reason, considering all the circumstances including the size and administrative resources of the business.  

Where misconduct is the reason for dismissal, the tribunal will judge whether the employer has satisfied the “Burchell” test (British Home Store Limited v Burchell [1980] ICR 303n).  This involves assessing whether, at the time of dismissal:

• The employer had a genuine belief in the employee’s guilt;
• It had reasonable grounds for that belief; and
• At the time it held that belief, the employer had carried out as much investigation as was reasonable in the circumstances.

The facts

Mr Hardy was employed by Topps Tiles as a store manager and had been employed by the company for 17 years.   During his lengthy employment he only had one “record of concern” on his record which arose from a minor incident in 2016.  As a store manager, Mr Hardy had to deal with the occasional difficult or aggressive customer and did so effectively over a number of years.  

Mr Hardy had suffered from depression for over 20 years and experienced symptoms such as occasional anxiety and heightened anger.   He found it difficult to deal with anger or abusive behaviour directed towards himself or his colleagues but managed to do so successfully on the occasions when this arose during his long employment with Topps Tiles. 

Five weeks before the incident which led to his dismissal, Mr Hardy broke down during a meeting with his manager and disclosed that he had a history of depression and talked about his poor mental state. 

On 19 November 2019, a customer came into the store where Mr Hardy worked and complained about a delay in his order and asked for a discount to reflect this.  What happened next was something that the tribunal had to decide upon based on the account of the customer and the accounts of Mr Hardy and his two colleagues who corroborated Mr Hardy’s version of events.  After considering all the evidence, the tribunal concluded that it was Mr Hardy’s account that it found credible in all respects – not the customer. 

According to the facts as decided by the tribunal, the customer came into the store to collect an order that he incorrectly claimed was delayed and asked aggressively for a discount which he was not entitled to.  He then proceeded to tell the staff that they “couldn’t organise a p*** up in a brewery” and became increasingly aggressive. 

On being told by Mr Hardy that his delivery was not late, the customer said “F*** this, I’ll just get a ****ing refund”.   Mr Hardy agreed to process the refund while the customer continued swearing.  At some point the customer asked Mr Hardy to go out to the car park, with the intention of escalating the situation into a fight.  Mr Hardy agreed to go outside and managed to defuse the situation.  Returning back to the store, the customer then proceeded to announce that “apparently I’m the world’s worst customer”.  Mr Hardy told him that he was being a “nightmare” to which the customer responded that this was the worst customer service he’d ever received.  

While this was all going on, Mr Hardy had picked up his cup of tea from behind the counter to have a drink.  At this point the customer called Mr Hardy a ****ing p**ck which made Mr Hardy angry, and he gestured for the customer to leave the store but in doing so some of his cup of tea splashed onto the counter and landed on the customers face.  This made the customer swear again and became more aggressive before leaving the store, telling Mr Hardy’s colleagues that he had intended to hit Mr Hardy.  

The customer reported the incident via the employer’s customer services line, saying Mr Hardy had “kicked off”, called him a “nightmare”, a “p****” and an “ar**hole” and then threatened him, before finally throwing a drink at him. The customer said he had taken a video of the whole thing and had also gone to the police.

Mr Hardy was suspended and an investigation ensued.  Even though both his colleagues corroborated his version of events, Mr Hardy was dismissed for gross misconduct.  The reasons given for his dismissal were his aggressive and unacceptable behaviour and the use of foul and offensive language towards a customer.

Findings

Applying the Burchell guidelines, the Tribunal concluded that the investigation was not a reasonable and balanced one and was based on an acceptance that everything the customer said was true. 

The tribunal found that the customer’s version of events was not challenged as it should have been and that the investigation did not take into account the contradictions between what the customer said and what Mr Hardy and his two colleagues said. 

The Tribunal also was critical of the fact that no consideration was given to the possibility that the customer was making an exaggerated complaint or that his assertions lacked credibility (the video footage never transpired and the police never investigated).  Overall, the tribunal held, this appeared to be a case where the employer “took the view that the customer is always right, with little or no regard for the need for a store manager to stand up to a customer in order to protect himself or his colleagues from unwarranted abuse”. In summary, the tribunal found that the dismissal fell outside the range of reasonable responses and was unfair. 

The tribunal also upheld Mr Hardy’s claim of disability discrimination.  The tribunal concluded he was treated unfavourably because of something arising in consequence of his disability, namely his difficulties in managing his anger in response to a trigger such as an argument with a customer, and that the decision to dismiss him for that was not a proportionate way of achieving the employer’s stated aim of ensuring a positive customer experience. 

Points to note and action to take

If there was a competition for world’s worst customer this one would probably be up there among the worst.  

Undoubtedly this was the right outcome, and the employer was wrong to prioritise the customer over its long-serving employee on the facts of this case.  Although the employee should not have sworn at the customer, this was done in the face of extreme provocation where he and his colleagues were being subjected to a torrent of verbal abuse.  The most surprising aspect about this case is that Topps Tiles let it go all the way to a tribunal.  

Although customer aggression on the level described in this case is uncommon, verbal abuse of customer-facing staff is on the increase.    Since the outbreak of the Coronavirus pandemic, abuse against retail workers has doubled and other customer facing businesses have reported experiencing a marked increase too.   For consumer-facing businesses this presents a real challenge because of the need to balance their customer service priorities with their duty to protect staff from any forms of harassment, bullying or other threatening behaviour. 

All employers are, of course, under a duty to provide a safe working environment for their staff.  For customer-facing businesses, this means identifying the risks posed to your staff and taking steps to mitigate the risk of any potential harm arising.   Obviously, the level of risk will depend on the type of business that you have but there are some steps that all employers can take to protect staff but also protect the business from liability and reputational harm:

1. Have a clear procedure in place for reporting incidents of threatening or abusive behaviour and make sure all your staff are aware of the process.

2. Provide training to staff on how to deal with challenging customers and what a member of staff must do if they are threatened. 

3. Encourage employees to discuss any issues they are experiencing with their line managers to foster a supportive and positive workplace culture.

4. Address any complaint or incident of inappropriate customer behaviour without delay and offer support.    

5. Investigate customer complaints against staff with objectivity – recognising that there are always two sides to a story.   Clearly there may be limits to the extent to which a customer’s account can be challenged but, as the tribunal pointed out in this case, it should be subject to a reasonable level of scrutiny, and it should not be assumed that the customer is always right! 

If you would like any support or training on how best to deal with disciplinary issues when they arise please do not hesitate to get in touch. We are also able to independently investigate any disciplinary issues for you and provide objectivity in scenarios like the one described in this case.

Full case details can be found here