A correspondent for the Guardian recently wrote that Tribunals increasingly appear to be deciding disputes that – based on the eye-catching headlines – appear to belong more in a “soap opera” than in civil proceedings.
Of course, a claim about unpaid wages is rarely going to catch a reader’s attention but an employee unfairly dismissed for calling her boss a “d***head” – well, now that’s a story!
And so it was that Kerrie Herbert, erstwhile employee of a scaffolding and brickware company, Main Group Services Limited, made the headlines when she was found to have been unfairly dismissed by her employer after referring to her manager and another director as “two d***heads”.
Of course, the facts of the case reveal a far more nuanced set of circumstances than the attention-grabbing headlines imply. Read on to find out why it was that Ms Herbert won her case after committing what many a reasonable employer would consider a serious offence.
Ms Herbert was employed by Main Group Services Limited, a small business run by Mr and Mrs Swannell, who were husband and wife. Mr Swannell was the Operations Director and Mrs Swannell the Managing Director. They also happened to be Ms Herbert’s brother and sister-in-law.
Ms Herbert worked for the company for 3 years until she came upon some documents in Mr Swannell’s desk drawer which set out how much she was costing the business. This made Ms Herbert extremely upset and angry.
After this, a contractor of the business complained to Mr and Mrs Swannell that Ms Herbert had unexpectedly lost her temper and kicked a printer – adding also that she was unprofessional and didn’t do jobs she was supposed to do. Mr Swannell decided to invite Ms Herbert to a meeting on 20 May 2022 to discuss these issues.
At the meeting, by all accounts, accusations were made, things got heated and Ms Herbert became upset. Ms Herbert and Mr Swannell had different versions of what happened next, but the Employment Tribunal Judge considered Ms Herbert’s account was the more truthful one. According to Ms Herbert, she said, that “if it was anyone else in this position…they would have walked years ago …but it is only because of you two dickheads (referring to her brother and sister-in-law) that I stayed”.
She said this was said in a joking, familiar way. In response to this, Mr Swannell said “don’t call me a f***ing d””” head or my wife, that’s it you’re sacked, pack your kit and f*** off”. Ms Herbert then asked if she was being dismissed to which Mr Swannell said, “yes I have now f*** off”.
After this meeting, Ms Herbert wrote to the business, setting out her version of what happened and how she had been dismissed. The business subsequently wrote to her denying she had been dismissed and informing her that she was suspended pending a disciplinary investigation. Ms Herbert continued to maintain that she had already been dismissed and proceeded to submit a claim for unfair dismissal and wrongful dismissal in the Employment Tribunal.
The Employment Tribunal Judge concluded that Ms Herbert had been dismissed at the meeting on 20 May 2022. The Judge said this was not one of those exceptional cases where there is actually no dismissal because words are spoken in anger and immediately withdrawn. The Judge said that the subsequent disciplinary investigation and proceedings carried out by the employer were contrived to try to show a fair procedure had been followed.
In relation to the fairness of the dismissal, the Judge first found that the dismissal was a procedurally unfair dismissal. The employer had, by dismissing Ms Herbert on the spot without warning or notice, quite evidently not followed any process at all.
The Judge also concluded that the employer “had not acted reasonably in all the circumstances in treating Ms Herbert’s conduct on 20 May 2022 as a sufficient reason to dismiss her”.
In providing their reasoning, the Judge said that Ms Herbert had made a one-off comment ( “you two d***heads”) to her line manager. Although her comments were unacceptable, they were made during a heated meeting and there was no suggestion she had made these comments before. The judge went on to say, for these reasons, they did not believe the “one off” comment amounted to gross misconduct or serious misconduct entitling her employer to summarily dismiss her.
The case highlights the importance not only of following a fair investigation and disciplinary procedure but also the need to carefully consider all the relevant circumstances when deciding what sanction is reasonable. Even if your disciplinary procedure lists “insulting and abusive language” or similar as an example of behaviour that will amount to gross misconduct, it is not necessarily going to justify the employee’s dismissal.
The seriousness of the language used, the context in which they were said and the employee’s previous disciplinary record will all be relevant to the decision-making process.
Another interesting aspect of the case is that it dealt with the concept of “heat of the moment” dismissals – whereby telling an employee to leave in a fit of temper does not necessarily amount to a dismissal if it is quickly withdrawn – although it’s not going to prevent the employee from claiming they have been constructively dismissed instead.
It is a useful reminder also of “heat of the moment” resignations and how caution must be taken if an employee impulsively resigns during a disagreement or when they are under a lot of stress. In these situations, an employer should not take the resignation at face value but allow the employee a reasonable period in which to “cool down” and withdraw their resignation.
If temperatures are rising in your workplace, give the team at Real Employment Law Advice a call where our cool-headed and calm approach will help you to resolve any workplace issues before they escalate.
You can read the full case details and judgement here: https://assets.publishing.service.gov.uk/media/64ae81ed8bc29f00132ccb82/Ms_K_Herbert_v_Main_Group_Services_Ltd_3310773.2022_FMH_Reserved_Judgment.pdf
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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.
The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.
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