Employee who used offensive language was unfairly dismissed as swearing commonplace

The claimant, in the case of Mr R Ogden v Booker Limited, was dismissed after using offensive language. The Employment Tribunal (ET) then had to consider whether the dismissal was fair or not.

The facts:

An employee of the respondent raised a grievance alleging that they had been bullied by the claimant. The incident they referred to took place in the respondent’s office, during a discussion about donuts, weight loss and attending a weight loss club. It was alleged that the claimant had been aggressive in using derogatory words towards them.

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 they were dismissed for breaching the dignity at work policy because they used offensive language to an employee when discussing their weight.

The claimant brought an unfair dismissal claim because they alleged that a proper process was not followed, and the sanction was too severe.

Employment Tribunal:

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 were not satisfied that another employer would have acted in the same way as the respondent. The ET, therefore, found that the claimant was unfairly dismissed.

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Takeaway points:

This case demonstrates the importance of considering the workplace culture when deciding on cases where there has been a breach of an organisation’s dignity at work policy, or other similar policies. Failing to take into account the generally accepted behaviour within the workplace when deciding on a sanction in a misconduct case can, as the employer found out here, result in that decision being deemed too harsh where it singles out one employee for behaviour that is in keeping with the behaviour of others in the workplace.  

Steps should have been taken to address the workplace culture. Whilst 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.

If there are concerns about employee misconduct in your workplace, reach out to the HR Advice Team for guidance and support.