The recent case of Herbert v Main Group Services highlights the critical importance of following a fair and proper process when dismissing an employee. The Claimant was awarded over £29,000 (including costs) after the Employment Tribunal found that her dismissal following a ‘heat of the moment’ comment was neither a fair reason for dismissal when considered in context, nor was the procedure followed by the employer fair.
Background
Main Group Services Limited was a scaffolding and brickwork company employing a total of six people. The Operations Manager was the Claimant’s brother-in-law, and the Managing Director was her sister-in-law. The Claimant worked as the Office Manager and had over two years of service at the time of her termination.
The Claimant discovered documentation which she believed indicated that her employment was about to be terminated and began crying. The Respondent alleged that the Claimant reacted by kicking and hitting a printer while shouting and screaming. Later that day, the Operations Manager met with the Claimant, stating he wanted to discuss a few matters, but not providing any further detail.
During this meeting the Operations Manager expressed dissatisfaction with the Claimant’s performance, citing issues such as late payments to suppliers, problems with bookings, and excessive time spent on her phone. The Claimant’s evidence was that her response was that many of the concerns raised did not fall within her job description whilst maintaining that this was the first time any performance concerns had been raised. The meeting became heated, with the Operations Manager allegedly becoming verbally aggressive, causing the Claimant to cry again. The Claimant stated that she then attempted to reaffirm her commitment to the company, saying: “If it was anyone else in this position, they would have walked years ago due to the goings-on in the office, but it’s only because of you two ****heads [referring to the Operations Manager and Managing Director] that I stayed.” She claimed this was said in a light-hearted manner and reflected the usual tone of communication between them. However, she alleged that the Operations Manager responded, “Don’t call me a ****ing ***head or my wife,” and immediately dismissed her. The Respondent’s version of events was that the Claimant had been suspended following the meeting.
The Claimant was sent a letter a week later confirming her ‘verbal suspension’ and explaining that there was going to be an investigation into her ‘rude and objectionable behaviour and language’ during the meeting. An independent HR consultant was engaged to conduct the investigation. The Claimant, however, refused to participate in the process, asserting that it was a retrospective attempt to ‘backtrack’ and ‘reinstate [her] through the back door’. The Claimant maintained that she had been dismissed and did not return to the Respondent’s offices after the date of the meeting.
Two months after the meeting, the Claimant received the outcome of the disciplinary investigation, along with a letter confirming her dismissal for gross misconduct. The report upheld all allegations and stated that the Claimant remained employed throughout the disciplinary process. This assertion was based on the absence of evidence confirming the Claimant’s dismissal at the time, the fact that she continued to receive pay, the Respondent’s adherence to its disciplinary procedure, and the Claimant’s failure to appeal the dismissal or raise a grievance.
Tribunal Decision
The Tribunal preferred the Claimant’s account of the dismissal and found the Respondent’s evidence to be unreliable. It also noted that there was no evidence the Claimant had been subject to any disciplinary proceedings or received any prior warnings before the meeting in question. While the Tribunal accepted that the Respondent had concerns about certain aspects of the Claimant’s performance, it concluded that the true reason for her dismissal was the “critical and intemperate comment” she made about the Operations Manager and the Managing Director.
Although the Tribunal acknowledged that the Claimant’s comments could potentially amount to a fair reason for dismissal, it concluded that, when considered in context, they were not sufficiently serious to constitute a fundamental breach of contract that would have entitled the Respondent to dismiss her without notice. The Tribunal found that the remarks were made during a one-off incident, at a time when the Claimant was distressed after discovering information suggesting her job was at risk. While the Tribunal described the comments as “inappropriate and regrettable,” it held that they did not justify dismissal without notice.
The Tribunal also found that the investigation and disciplinary process appeared to have been constructed retrospectively, in an attempt to demonstrate that a fair procedure had been followed.
Lessons for Employers
- Always follow a fair disciplinary process – employers must adhere to their disciplinary procedures before dismissing an employee. Skipping steps or applying the process retrospectively can render a dismissal unfair, regardless of the underlying conduct.
- Don’t overreact – employers should avoid making decisions or saying things in the heat of the moment. Time should be taken to review relevant policies before deciding on the next steps.
- Context matters – the Tribunal placed significant weight on the circumstances surrounding the Claimant’s comments. Emotional reactions in high-stress situations may not justify summary dismissal, especially if they are isolated incidents.
- Apply policies consistently – inconsistent or selective application of disciplinary procedures can undermine the fairness of the process. Employers should ensure that all employees are treated equally and that policies are applied uniformly.
How We Can Help
For further information, or to discuss the issues raised within this case, please contact us to speak to a member of our Employment Team.
