REWARD
Dispute decisions
Nicola Mullineux, senior employment tax specialist for Peninsula, examines the outcomes and implications of three employment tribunal cases
Employee who used offensive language at work was unfairly dismissed The employment tribunal (ET), in the case of Mr R Ogden v Booker Limited, had to consider whether a proper process was followed and a suitable sanction issued to an employee who was using offensive language. An employee of the respondent raised a grievance alleging that she had been bullied by the claimant. The incident she referred to took place in the respondent’s office, during a discussion about doughnuts, weight loss and attending a weight loss club. It was alleged that the claimant had been aggressive in using derogatory words towards her. An investigation then took place. This investigation found a number of instances where “office banter” had taken place, not just involving the claimant. No action was taken to stop such incidents. The claimant was suspended and invited to a disciplinary hearing, following which he was dismissed for breaching the dignity at work policy because he used offensive language to a colleague when discussing her weight. The claimant brought an unfair dismissal claim because he alleged that a proper process was not followed, and the sanction was too severe. The ET said that there was a failure to assess the claimant’s behaviour in
the context of a toxic, dysfunctional and lawless office where the managers were complicit in the development and maintenance of that culture, which was made worse by their failure to enforce standards. Referring to a meeting between the claimant and a manager, the ET said: “I am satisfied that swearing should not be acceptable in a workplace, although common everyday experience, particularly in the North is that the ‘F’ word is used quite often spoken in the public sphere. It is interesting that the manager conducting the interview did not intervene to stop the claimant from using expletives. It tends to support a culture within the workplace that stood apart from what might be considered acceptable workplace norms.” Procedural flaws were also identified by the ET in the process leading up to the dismissal. The respondent did not interview all witnesses, disciplinary minutes were not taken properly and the implementation of the dignity in the workplace standards was also “woeful”. The ET found that the decision was harsh. The claimant had not been told previously that such conduct was causing offence. When looking at the procedural failings and the matter as a whole, the ET was not satisfied that another employer would have acted in the same way as the respondent. Steps should have been taken to
address the workplace culture. While the claimant’s comment was not acceptable or appropriate, it was in line with the behaviour generally found in the workplace and that is the issue that should have been addressed. The ET, therefore, found that the claimant was unfairly dismissed. Pregnant employee described as “very emotional and tearful” awarded over £350k In the case of Hinds v Mitie Limited, the ET had to consider whether the treatment of an employee during her pregnancy, maternity leave and upon her return to work constituted discrimination and entitled her to resign and claim constructive unfair dismissal. The claimant, who was around seven months pregnant at the time, sent an email to two of the respondent’s leadership team, both who had line management responsibilities to the claimant at various times. In the email, the claimant explained that she was “really struggling” with certain aspects of the role, had experienced two panic attacks that week, significantly disrupted sleep and was concerned that she might become seriously ill with work stress and anxiety because she was struggling mentally and physically with the workload. The claimant concluded her email with a request to establish a handover plan to resolve the situation.
| Professional in Payroll, Pensions and Reward | February 2025 | Issue 107 30
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