An employment tribunal has found that the dismissal of an employee for using an expletive and an offensive term towards a colleague was unfair. A significant reason for this was the ‘toxic culture’ in the office, it was ‘lawless’ with no real enforcement of expected workplace norms by managers and there was a failure to take this into consideration when dismissing the employee.
The case of Ogden v Booker Ltd is a reminder for businesses of what can happen if workplace culture, particularly ‘banter’, is not appropriately kept in check. It also highlights the importance of ensuring that a fair and appropriate disciplinary process is followed for conduct issues and that any outcome is reasonable in the circumstances.
So, what happened in this case?
- Facts of the case
- What did the judge say?
- Kingfisher’s advice
Facts of the case
The employee worked as a driver/ trainer. Whilst he was in the office there was some discussion about donuts, weight loss and attending a weight loss club during which he said to a colleague ‘”Becky you can’t do that, are you a f****** m***? no wonder it takes you 19 weeks to lose a stone, it hasn’t taken me 19 weeks”. His colleague raised a grievance about the incident and took some time off work.
The employee was suspended, the incident was investigated and the employee went through a disciplinary process before being dismissed for gross misconduct for breaching the dignity at work policy. The employee appealed the decision but was unsuccessful. He complained to the employment tribunal that he had been unfairly dismissed.
What did the judge say?
The judge found that the words the employee admitted using were offensive and were on the face of it a breach of the dignity at work and disciplinary policy. As such, the employer was entitled to investigate. However, it was unfair to dismiss the employee as there were a number of procedural failings which affected the fairness of the dismissal and the decision itself was unreasonable in the circumstances.
The judge was critical of the decision to dismiss for reasons including:
- The incident occurred against a background of widespread ‘banter’, pranks and inappropriate conduct with the workplace culture being descried as ‘toxic’ and lawless’ with no real enforcement of expected workplace norms, yet this was not taken into consideration during the disciplinary process. The disciplinary manager didn’t consider it to be relevant to the issue at hand, rather something to be picked up more widely separately. However, the judge found that a reasonable employer would have weighed the issue of workplace culture to have considered how it impacted on the fairness of pursuing the employee, and what sanction to impose. This was a significant procedural flaw.
- The dismissal was unfair in the circumstances – the employee argued he was the unlucky one to have been sanctioned. He said there had been previous altercations between employees, including managers and that the business had been aware of this. The employee argued that his incident was an isolated one, it was an outburst, a one-off compared to an otherwise exemplary record. The judge found that “There was a real sense of [the employee] being made an example of, which in the context of the free-for-all office, and significant failings in process was unreasonable”. It was also unclear that his length of service had been taken into account.
- The judge wasn’t satisfied that in these circumstances (including the failures in the disciplinary process), that dismissal was within the band of reasonable responses open to an employer. The judge said that “ a finding of misconduct and a written warning to set proper future standards is likely to have been what at least some other employers would have done… other employers may have pursued an informal remedy or abandoned the process”.
Compensation will be decided at a later date.
Kingfisher’s advice
It’s important to make sure your employees are clear about what is and isn’t acceptable conduct in the workplace, not only can it increase risks to the business if this isn’t done but as shown by this case it can make it difficult to safely action undesirable behaviour if things are allowed to get out of hand.
Investing in workplace training can make a real difference when it comes to workplace culture – making expected standards of behaviour clear and reducing the risk of issues arising – but training needs to be effective and appropriate records kept. One of the areas of criticism the judge had in this case was that training and implementation of dignity in the workplace standards was “woeful”. The judge commented that whatever training there was it was possible for the employee “to click through the online training given there were multiple ‘0 minutes’ entries. That suggests an ineffective safeguard in the training process”. If you are providing training on key HR areas (or refreshers) to your employees, quality counts.
Remember, it’s not just employees that benefit from training, it’s vital to ensure managers have the training they need to lead by example, spot issues and deal with them promptly, appropriately and effectively. The managers involved in the disciplinary process in this case were experienced, highlighting that it can be all too easy to make a mistake and the value of refreshing knowledge and where needed, seeking support. Interested in HR training for your business? Get in touch to find out how we can help.
Remember, if you have a suspected conduct issue in your business get in touch. We can provide business focussed support from the investigation stage and throughout any subsequent disciplinary procedure.
Employee under two years service? You may be able to dismiss without needing to follow the usual disciplinary process but it’s important to get in touch for specific advice on the facts of your case before acting. Bear in mind there are some claims even short serving employees can bring, such as discrimination, so it’s important not to inadvertently get caught out.