Mind your language – but mind your procedure more!

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.