How much would you pay for saying your piece? If your answer was £30,000 then your instincts may be on the money. That sum is exactly what an employer has had to pay out in a recent employment tribunal case, which serves as a powerful lesson on the importance of procedure, context, and keeping a cool head.
The case involved office manager Kerrie Herbert, who was fired on the spot after calling two company directors of her employer, Main Group Services Ltd, an insulting slur during a heated meeting. While the language was inappropriate, the tribunal ultimately found her dismissal was unfair, leaving her former employer with a hefty bill for compensation and legal fees.
This decision is by no means a carte blanche for employees to start calling their employers every name under the sun, but it is a critical reminder for employers that how you react is just as important as what you are reacting to.
What Happened?
According to the tribunal hearing, the incident occurred during a tense discussion about Ms Herbert’s performance. In a moment of frustration after a heated discussion, she referred to the two company directors, Thomas Swannell and Anna Swannell, with a derogatory phrase.
Mr Swannell’s response was swift and volatile. He allegedly used a swear word in return and dismissed Ms Herbert instantly, with no process and no further discussion.
The Tribunal’s Reasoning: Why Was This Unfair?
The tribunal’s decision didn’t condone the insult. Instead, it focused on Main Group’s complete failure to act reasonably. The key factors were:
- Context: Judge Sonia Boyes noted that the comment was a “one-off” made during a “heated meeting” where Ms Herbert was clearly distressed. It wasn’t a calculated act of insubordination or part of a pattern of abusive behaviour. In the eyes of the tribunal, the situation demanded a more measured response than instant dismissal.
- Failure to Follow Company Policy: Ms Herbert’s own contract was a crucial piece of evidence. It specified that “insulting or abusive language” was misconduct that required a prior warning. Summary dismissal was reserved for gross misconduct, such as “threatening and intimidating language.” The tribunal found Ms Herbert’s outburst didn’t meet that higher standard.
- Lack of Process: Firing an employee on the spot is almost always procedurally unfair. Mr Swannell’s heat-of-the-moment decision bypassed every element of a fair disciplinary process. A fair procedure would have involved:
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- Conducting a fair and impartial investigation into the incident;
- Inviting the employee to a formal disciplinary hearing to state her case; and
- Reaching a considered decision on the appropriate sanction.
By skipping these steps, Main Group left itself open to risk of a successful unfair dismissal claim.
Key Lessons for Managers and HR Professionals
This case provides clear and practical guidance for any employer faced with employee misconduct:
- De-escalate: A manager’s primary role in a tense situation is to de-escalate. Instant, emotional decisions are usually a recipe for a legal dispute.
- Know and Follow Your Policies: Your disciplinary procedure is your most important tool. Know where it’s located and use it consistently and fairly. It exists to ensure decisions are made objectively and fairly.
- Document everything: Take a note of what happened and when. Contemporaneous notes are always helpful pieces of evidence to have.
- Act Fairly: Always consider if the sanction is proportionate. Was it a momentary lapse of judgement or a serious act of misconduct? Does the employee have a clean record? Dismissal should always be considered a last resort. A warning for a first offence like this is often a more appropriate response than dismissal.
In summary, the Herbert case is not truly about whether it is ever acceptable to insult your employer. Instead, it showcases the non-negotiable requirement for employers to act fairly and follow a proper procedure, even when faced with challenging employee behaviour.
