Lessons for employers from the Herbert v Main Group unfair dismissal case

The Employment Tribunal case of Herbert v Main Group Services has grabbed national attention as it relates to an office manager who was summarily dismissed for gross misconduct after calling her manager and a director “dickheads.”

Despite her remark being inappropriate, the Employment Tribunal found the dismissal unfair, ruling that a single heated outburst did not amount to gross misconduct, especially since proper disciplinary procedures had not been followed.

The Tribunal emphasised that context and procedure matter as much as content.

Background

Ms Herbert had discovered documents suggesting her job might be at risk, and had become distressed when her manager confronted her about her performance. During that tense meeting, she made the impromptu remark, which triggered an immediate dismissal by her manager (who used an expletive when dismissing her!).

The Tribunal found that the firm’s policy allowed for dismissal only in cases of threatening or intimidating language; therefore merely insulting someone fell short of that threshold and therefore a warning would have been more suitable. Since Ms Herbert had received no prior warnings, the Tribunal concluded that her dismissal was both procedurally and substantively unfair.

As a result, Ms Herbert was awarded over £15,000 in compensation and an additional £14,000 in legal costs, bringing the total to nearly £30,000.

However, unfortunately for Ms Herbert, it seems she may be unlikely to be paid that amount, as the Tribunal was informed that the Respondent company had ceased trading and was insolvent.

From a legal point of view this case is not binding on other Tribunals, but nevertheless it serves as a critical reminder that even unprofessional or offensive remarks do not automatically justify summary dismissal, especially when they are made under emotional stress and the employer’s policies are applied without proper process.

What are the lessons for HR and employers from this case?

1. Always follow procedure: Even in cases where behaviour seems obviously inappropriate, employers must adhere to disciplinary processes, including issuing warnings where appropriate, before moving to dismissal.
2. Consider the context: Tribunals will weigh up the circumstances surrounding an incident, including factors such as employee stress, provocation, and prior conduct, when assessing fairness.
3. Distinguish between misconduct and gross misconduct: Not all inappropriate remarks or behaviour will meet the threshold for summary dismissal. Your policies should make this distinction clear.
4. Ensure your policies are applied consistently: Applying rules unevenly or disproportionately increases the risk of a successful unfair dismissal claim.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Assessing when a neurodivergent condition qualifies as a disability under the Equality Act 2010

In many Employment Tribunal claims involving allegations of disability discrimination, the first hurdle for an employee will be to establish that they are a disabled person under the Equality Act 2010.

An individual is disabled under the Equality Act if they have a physical or mental impairment which has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities.

In recent years, increased awareness of neurodivergent conditions has led to more people seeking diagnoses. Consequently, there has been an increase in Employment Tribunal claims which concern allegations of discrimination involving neurodivergent conditions.

Neurodivergent conditions include, but are not limited to: Autism Spectrum Disorder, ADHD, dyslexia and OCD. Neurodivergent conditions can vary greatly in how they present in each individual. As such, determining whether an individual with a neurodivergent condition is disabled under the Equality Act is not straightforward and involves a careful analysis of the impact the condition has on the individual’s daily life.

Harry Stedman v Haven Leisure Ltd

In the recent case of Harry Stedman v Haven Leisure Ltd [2025] EAT 82 the Employment Appeal Tribunal needed to consider whether Mr Stedman was disabled under the Equality Act as a result of his diagnosed conditions of Autism Spectrum Disorder and ADHD. The appeal followed a previous Employment Tribunal decision which held that Mr Stedman was not disabled.

The Employment Appeal Tribunal overturned the previous decision and the Employment Tribunal will now need to reconsider the question. The following points from the appeal are of note when considering whether a neurodivergent condition has a ‘substantial adverse effect’:

• An individual’s achievements in one area (for example, public speaking) should not be used to discredit their difficulties in other areas
• An individual’s abilities should be compared to what their hypothetical abilities would be without the impairment, not to what the average person’s abilities are. For example, if an individual achieved above average academic results, there would still be a substantial adverse effect if, without the impairment, they would have achieved even better results.
• A medical diagnosis of Autism Spectrum Disorder or ADHD (and potentially other neurodivergent conditions) will be evidence of an impairment, but can also be evidence of a ‘substantial adverse effect’. This is because the diagnosis will be a reflection of a clinician’s opinion on the individual’s daily functioning ability.

Whilst the points raised in this case are of particular relevance when considering neurodivergent conditions, they are also relevant when considering any other mental or physical impairment.

Other considerations

It is common for neurodivergent conditions to co-occur. Where an individual has multiple impairments, the cumulative effect of them can be considered in determining whether an individual is disabled.

Whilst a diagnosis will be useful evidence, it should be noted that a clinical diagnosis is not mandatory for the Equality Act definition to be fulfilled. This is relevant in the context of an individual who is awaiting an assessment for a neurodivergent condition.

If you would like assistance in either pursuing or defending a potential disability discrimination case, please contact any member of our Employment Team.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.