The media had a field day last week with a story that an Employment Tribunal had ruled that being sacked for calling your boss a “Dickhead” was grounds for Unfair Dismissal. As always when it comes to the reporting of Employment Law stories, the old adage “never let the truth get in the way of a good story” applies here.
The case involved a Ms Herbert, who was sacked from the small construction business she worked for by its Operations Director. He was also Ms Herbert’s brother in law, and was married to the Managing Director who was therefore her sister in law.
Most of the facts were disputed – included the date Ms Herbert was dismissed. The only consistent fact that everyone agreed on was that at some point in the meeting where she alleged she was dismissed, she used the words “fucking dickheads” to describe the Operations Director and his wife.
The reason she won her case was that the company made a complete pig’s ear of dealing with the situation. In fact pretty much everything they could have got wrong they did.
- When the ‘dickheads’ comment was made, the Operations Director told Ms Herbert to ‘get out’ and that she was ‘sacked’
- The company then tried to construct a case about Ms Herbert’s misconduct and hold a later disciplinary hearing on a series of alleged serious breaches of company rules. She refused to participate in this process on the basis that the company had already sacked her.
- The context in which the comment was made was not enough to justify a gross misconduct dismissal – and therefore she was entitled to be paid notice. In fact their company policy said that use of ‘insulting and abusive language’ would only result in dismissal if a prior warning had been given.
There are three important takeaways for small businesses from this case – none of which are around what Ms Herbert said
- Employment Tribunals deal with the facts in each individual case. This decision does not set a precedent in any way, and especially it doesn’t give a green light for employees to abuse their bosses without penalty.
- To make a dismissal fair, you have to have a fair reason and follow a fair procedure. The judge did conclude that Ms Herbert’s behaviour could well have been a fair reason but the Operations Directors ‘spur of the moment’ decision was not in any way a fair process.
- The case shows starkly how long the tribunal process is taking – the events of this case happened in 2022 but the decision was not published until last week. Regardless of who is right or wrong, having a claim that takes 3 years to resolve is not a sensible way to resolve employment disputes (and as this article shows, this is not an untypical timescale)
