Unfair dismissal: Recent cases and what they tell us

Unfair dismissal: recent cases and what they tell us

Tom Clarke, Employment Law & HR

Two recent Employment Tribunal cases have caught the headlines for demonstrating the broad spectrum of what does and does not amount to a potentially unfair dismissal. Tom Clarke takes you through what you need to know as an employer.

Calling your boss a dxxxhead: Herbert v Main Group Services

An office manager was dismissed for gross misconduct after calling her manager and a director “d***heads” during a heated meeting. The dismissal was immediate and without any form of process. In fact, the manager used similarly ‘colourful’ language in doing so.

Although the lack of process would make the dismissal procedurally unfair, it was a classic example of where some employers would rely upon the concept of “contributory conduct” to argue that any compensation should be reduced. In fact, the tribunal found that although the remark was inappropriate, it was a single outburst, made under emotional pressure, and did not meet the policy threshold for gross misconduct. The employee also had a previously clean disciplinary record.

Furthermore, the employer’s disciplinary policy specified that a warning would be issued for insulting language unless the language was threatening or intimidating. The failure to follow that aspect of the procedure was a key factor in the finding of unfair dismissal.

Although the case concluded in 2023, at the recent costs hearing, the award to the employee was over £15,000 in compensation plus over £14,000 in legal costs.

This is a good reminder not to rush to conclusion even when, on the face of it, certain acts of misconduct appear sufficiently serious to warrant dismissal. Context matters; employer should consider whether a behaviour is repeated, whether there was provocation, the employee’s past record, emotional state, and whether their response is proportionate.

Also ensure that your disciplinary policies clearly define what kinds of conduct justify summary dismissal and consider tailoring these if there are common or recurring issues in the workplace.

Eye-rolling & constructive unfair dismissal: Howieson v Great Junction Dental Practice

Maureen Howieson, a dental nurse with over four decades of experience, claimed that she was subjected to a pattern of behaviour by a colleague which included eye-rolling, being excluded from conversations, being undermined, and other “rude, isolating, belittling” conduct.

Her employer was aware of her complaints but did not take effective action. Over time the behaviour escalated, impacting her health and resulting in a panic attack, following which Ms Howieson resigned. She perused a claim for constructive unfair dismissal and the tribunal found that the employer had committed multiple repudiatory breaches and awarded her £25,254 in total.

This case is a good example of how seemingly minor or non-verbal acts (eye-rolling, exclusion, ignoring) may contribute to a hostile environment and can over time amount to a repudiatory breach of contract. Whilst it is tempting to dismiss such complaints as frivolous, employers should take all complaints seriously and act promptly. Failure to address behaviour that is known to cause distress risks a finding of constructive unfair dismissal.

In cases of seemingly innocuous complaints, keeping clear records of investigations, communications, and any attempts at a resolution can help show that the employer has addressed complaints appropriately.

What do I need to know

These cases underline that behavioural standards, procedural fairness, and employer responsiveness are all crucial. Even isolated incidents can trigger liability if the employer’s own policies do not clearly distinguish what behaviour justifies immediate dismissal, or if the employer fails to follow its own procedures or address problematic behaviour in its workplace.

Let us know if you would like to arrange a review of your disciplinary and grievance policies in light of these decisions, to ensure they are up-to-date, clearly communicated, and consistently applied.