Introduction

An employment tribunal has confirmed that swearing at your boss is not necessarily a sackable offence, finding that a company unfairly dismissed an office manager on the spot for using a swear word. In Herbert v Main Group Services Ltd: 3310773/2022 specialist employment Judge, Sonia Boyes, awarded Ms Herbert nearly £30,000 in damages for unfair dismissal and breach of contract.

The case centred on Ms Herbert, an office manager at Main Group Services, a scaffolding and brickwork company in Northampton, where she had worked for seven years. The business was run by Mr Swannell, Operations Manager, and his wife, Mrs Swannell, Managing Director, who are Ms Herbert’s brother and sister in-law.

Facts

On May 20, 2022, Ms Herbert became upset after discovering documents in her boss’s desk detailing the cost of her employment, which she saw as an indication she might be laid off. Later that day, she requested a meeting with Mr Swannell due to anxiety about her employment.

During this meeting, Mr Swannell raised concerns about Ms Herbert’s performance, which she claims were the first time such issues had been brought to her attention. As the atmosphere intensified, Ms Herbert began to cry. She then stated to Mr Swannell, ‘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 ****heads that I stayed.’ Ms Herbert maintained that this comment was intended as a joke, consistent with their usual communication style.

However, Mr Swannell responded by swearing back at her, saying, ‘don’t call me a ****ing ****head or my wife,’ and then summarily dismissing her with the words, ‘that’s it you’re sacked, pack your kit and **** off.’ When Ms Herbert sought clarification on whether he had just fired her, he responded, ‘yes I have now **** off’.

The Tribunal’s Findings: Unfair Dismissal and Breach of Contract

Judge Boyes ruled that while Ms Herbert’s language was ‘inappropriate’ and ‘regrettable,’ her immediate dismissal was unfair. The judge concluded that Ms Herbert was summarily dismissed on May 20, 2022, in the heat of the moment due to her comments, and not for the performance-related issues later cited by the company.

The tribunal found several key reasons for its decision:

1. Procedural Unfairness: The company’s disciplinary procedure was not followed at all prior to Ms Herbert’s dismissal. She was given no warning and no opportunity to state her case before the decision was made, rendering the dismissal procedurally unfair.

2. Contrived Disciplinary Process: The subsequent investigation and disciplinary proceedings initiated by Main Group Services were deemed “contrived” by the judge, an attempt to retrospectively create the appearance of a fair procedure. Performance issues the company tried to rely on were only raised after Ms Herbert had already been dismissed.

3. One-Off Comment in Context: The judge emphasised that Ms Herbert’s comment was a ‘one-off’ remark made during a heated meeting, with no suggestion of similar comments made previously. Considering the context, the judge did not believe the comments ‘amounted to a repudiation of the whole contract’.

4. Not Gross Misconduct: The tribunal found that Ms Herbert’s single comment did not amount to gross misconduct or misconduct so serious to justify summary dismissal. Her contract specified that ‘provocative use of insulting or abusive language’ typically warranted dismissal only after a prior warning, falling under ‘unsatisfactory work and misconduct’ rather

than gross misconduct. The employee handbook’s examples of gross misconduct required ‘serious instances of: bullying, aggressive, threatening or intimidating behaviour or excessive bad language,’ which Ms Herbert’s comments did not meet.

5. Unreasonable Employer Response: Judge Boyes concluded that the employer ‘acted unreasonably in treating the claimant’s conduct… as a sufficient reason for dismissing her,’ stating that dismissal in these circumstances was not within the range of reasonable responses available to the respondent.

As a result, Ms Herbert’s unfair dismissal claim was found to be well-founded. She was also found to be summarily dismissed in breach of contract, entitling her to damages equivalent to one month’s salary. Additionally, she was awarded two weeks’ pay because her written statement of particulars of employment did not fully comply with the requirements of Section 1 of the Employment Rights Act 1996 by failing to specify her place of work.

Conclusion

The ruling highlights the critical importance for employers to follow proper disciplinary procedures, consider the context and nature of an employee’s actions, and ensure that dismissals are a reasonable and proportionate response, rather than acting in the ‘heat of the moment’. It also serves as a reminder to ensure that employment contracts comply with the requirements of Section 1 of the Employment Rights Act 1996, and contains all the necessary information.

Please note the contents of this article do not constitute legal advice. If you require any further information or if you would like our assistance, please contact us at employment@berrysmith.com or on 02920 345 511.