The employee, Jones, worked as a part-time administrator for a blinds and curtains company since 2021.
Whilst handling multiple complaints from a particular customer, Jones sent an email intended for her colleague, the Installations Manager, asking “Hi Karl, can you change this, he’s a t**t so it doesn’t matter if you can’t”.
Jones inadvertently sent this email, by clicking reply, directly back to the customer instead of forwarding it to the Installations Manager as intended. The customer’s wife called Jones to enquire why she had sent this message containing an expletive about her husband. Jones called the customer with profuse apologies for her actions, but the customer’s wife demanded Jones’ manager.
The manager took over the customer’s account from Jones and assured them that Jones would be reprimanded for the incident. The customer requested compensation, but the manager was unwilling to providing their curtains free of charge. In response, the customer threatened to escalate the matter to the press and post on social media. The manager assured the customer that a full investigation would be carried out and further communication would follow as to the outcome.
Jones personally offered to make a payment to the customer of £500 as a goodwill gesture to bring an end to the matter.
Procedural Failures
The company alleged to the customer that an internal investigation had been conducted, but the tribunal found no evidence to reflect this. Neither Jones nor the customer had been interviewed, and no notes or formal records of the investigation were presented.
The customer, having not received any follow-up after the manager’s promises of an investigation, threatened to leave a poor review on Trustpilot about the company.
Jones was invited to a disciplinary meeting by her manager who was tearful when handing her the invitation letter. A senior manager had allegedly stated to “just get rid of her”, which led Jones to believe a decision had already been made and they were ticking the procedural boxes by giving her this letter before “being told to leave” at the meeting.
The employer then decided to terminate Jones’ employment for gross misconduct and wrote to the customer to confirm they had dismissed her in response to what they described as the “disgraceful” email – with entire disregard for Jones’ personal data rights being breached in the process.
Incorrect ‘Fair Reason’ for Dismissal
The tribunal found that the disciplinary process in this case was a ‘sham’, propelled by the employer’s motivation to appease the customer and avoid a bad review. This finding was due to the decision to dismiss being made only after the customer threatened to leave a poor review. Ultimately, the primary reason for dismissal was not Jones’ conduct by her language in the email alone, but rather it was due to the customer’s threat to publicise it.
The tribunal did address the nature of the email itself, including the use of improper language and that Jones had acted carelessly by not checking the recipient before sending, but noted that language of this kind was not uncommon in this workplace and that the email was a genuine error. The tribunal therefore ruled that, had a fair process been followed in the circumstances, Jones would not have been dismissed. She was awarded £5,484.74 for unfair dismissal.
Lessons for Employers
This case highlights the importance of undertaking thorough investigations and taking appropriate action. When considering the reason for this dismissal, the nature of the email incident itself did not provide the company with reasonable grounds to believe she was guilty of misconduct. No consideration was given to this by way of any investigation and a decision was driven by the customer’s threats.
However, the incident could have amounted to Some Other Substantial Reason (SOSR), which is one of the fair reasons for dismissal under the Employment Rights Act 1996, when considering the impact on the employer’s business if the customer did proceed with their threatened actions.
Proportionality of Decision
Despite there being an identifiable fair reason, the proportionality of dismissing Jones to appease the customer, particularly as Jones had provided an offer of financial recompense and that no other options of a lesser sanction had been considered, the conclusion to dismiss Jones in relation to the email had not fallen within the band of reasonable responses.
Whilst the tribunal found that the circumstances amounted to SOSR, not misconduct, the 25% uplift did not apply in relation to the procedural errors as it does not cover SOSR dismissals.
Conclusion
What may appear to be ‘safe’ ground for dismissing an employee for use of such inappropriate language is not as straightforward as it seems!
Setting clear expectations for staff through company values, codes of conduct and disciplinary policies is a key foundation for addressing any developing culture of expletive or derogatory language in the workplace.
Aside from prevention, it is imperative to ensure that procedures are correctly followed and fair investigations undertaken to establish the exact allegations before rushing towards a decision, despite any external pressures from third parties.
Taking this time to carefully address the issue at hand is also notably important to ensure that the relevant fair reason for a potential dismissal is correctly identified before pursuing it to an outcome.
Our employment team can support your business with key policies and procedures, training and dispute resolution solutions. For more information on our HR Retainer Services, please click here.
Jones v Vale Curtains and Blinds [2023]
