Bad language

The Employment Tribunal has recently dealt with a case involving some fruity language in a case where an employee of some 20 plus years was sacked for gross misconduct.

The claimant had worked for her employer for 20 years and brought claims of unfair dismissal and wrongful dismissal following her dismissal for gross misconduct. The allegations against the claimant are quite startling:

One is purported to be that the claimant inappropriately asked a colleague the purpose of a medical appointment and upon their return, said, 'how did you get on at your smear…, bet they didn't f"king find it'. Further allegations are that the claimant said 'I bet you stink' to a fellow employee and that the employee was 'shagging about'. The claimant denied the specific allegations and explained the context of some of the conversations that had taken place out of which the allegations may have arisen.

The ET said: 'It is inexplicable that there is no single comprehensive record of the allegations. The respondent's case is cobbled together from the various sources and no attempt was apparently made to follow up or clarify any of the information… None of the allegations are dated.'

The judgment stated:

'It was clear from the evidence given to the tribunal as well as from the [employer's] investigation that there were incidents of language and commentary, referred to as 'banter' by the interviewees, of a sexual or obscene nature in the office. While general use of such language would not excuse gross misconduct, there is no evidence other than that contained in the exit interview documents… that the claimant directed such language at [her colleague].'

An employee has the right not to be unfairly dismissed by her employer. Where the reason for dismissal is based upon the employee's conduct, the employer must show that this conduct was the reason for dismissal. On consideration of the facts, the Employment Tribunal concluded that the dismissal fell outside the band of reasonable responses open to employer in all the circumstances of the case.

The claimant's claim for unfair dismissal was well founded. In addition, the employer was in breach of contract when it dismissed the claimant, and her claim for wrongful dismissal was also well-founded and the court referred to the 'shortcomings' of the employer's investigation and disciplinary process.

The key line from the judgment is: There is no one comprehensive source of the allegations, or even of the exit interview itself.

An employer must ensure that it has robust and appropriate processes in place to deal with these difficult issues – 'banter' is always capable of causing office or being construed as bullying. Obtaining employment advice on how these procedures should be implemented is essential.

To discuss this or any other employment matter, contact us. 

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