UK: Unfair Dismissal: Workplace Culture
Authors: Charles Urquhart and Corinna Harris
An employment tribunal found that an employee was unfairly dismissed for swearing at work.
A colleague raised a formal grievance against Mr. Ogden, a driver/ trainer, complaining that he had been aggressive towards her and used the F word and a disability related slur against her in front of colleagues. During the investigations by Booker Limited, he admitted using offensive language but argued that there were no workplace standards, the culture was toxic with widespread inappropriate behaviour and pranks, and that the colleague participated in office “banter.” He was found to have breached the dignity at work policy and was subsequently dismissed for gross misconduct. After an unsuccessful appeal, Mr. Ogden brought an unfair dismissal claim.
The tribunal ruled that he was unfairly dismissed. It found that there was a “lawless” and “toxic culture,” with no real enforcement of expected workplace norms by managers. It held that a reasonable employer would have considered that these cultural issues were relevant to the disciplinary process, such that Booker’s decision to dismiss Mr. Ogden was outside the band of reasonable responses and that a written warning would have been more appropriate.
Key Action Points for Human Resources and In-House Counsel
This case illustrates the importance of a positive workplace in mitigating the risk of claims, and that such culture must be enforced by senior management. While Mr. Ogden’s behaviour was clearly inappropriate, the tribunal commented that there was a failure to assess his behaviour in the context of a dysfunctional workplace where the managers “were complicit in that dysfunction.”
