Simon Robinson, Employment Law Partner at gunnercooke LLP, discusses a case where a ‘funny mug’ led to an employee being dismissed from work.
What is an acceptable workplace gift in a work environment where swearing and offensive remarks are commonplace? In a recent case, Reed v CF Fertilisers UK Limited, the employment tribunal judge considered “a case about humour at work that has gone wrong”, when the Claimant brought in an offensive mug as a gift for a colleague.
Facts surrounding the case
The Claimant worked on a site where the workforce was roughly 95% male, and swearing and jokes were common among colleagues. He had worked for the Respondent for nearly 20 years, was well liked, hard-working and had a clean disciplinary record.
The Claimant had completed “Respect at work” training which included the phrase: “The same behaviour may be inoffensive to one person and deeply inoffensive and intimidating to another. Unintentional or misinterpreted behaviour may cause feelings of harassment”.
The Claimant had brought a mug into work, with the intention of cheering up his friend and colleague. On the mug, he had written a graffitied conversation between two cartoon owls which read: “Twit two who the fuck’s that lanky bitch, the whore, we’re gonna fuck her up, what a liberty”.
The mug’s message was intended to be referred to his colleague’s ex-girlfriend, and the recipient understood this. The claimant believed his friend had taken the mug home, but instead he had placed it in a cupboard at work.
A female consultant who was working alongside them saw the mug in the cupboard when she went to make a cup of tea. She made a written complaint because she found the wording offensive. She thought the mug was aimed at her given she was tall and there was a perception that she could be making redundancies.
The Respondent conducted an investigation, which heard the Claimant described by colleagues as having “a heart of gold.. a grafter [who] would never upset anyone”. He and his friend “joked about” and “their humour could be close to the knuckle”.
The Claimant was immediately apologetic about the mug and told the disciplinary hearing that he agreed that the words on the mug were “inappropriate and unacceptable and contravened company standards.” He apologised profusely and said if he had seen the mug was still at work, he would have taken it home.
While the Respondent accepted that the Claimant had not been targeting the consultant, the Claimant was summarily dismissed for bringing offensive material to work, which had been noted as an allegation on the disciplinary invite letter and was noted as the reason on the disciplinary outcome letter.
The disciplinary hearing officer considered other sanctions but “considered the gravity of the words used was such that dismissal was appropriate”.
Despite the appeal hearing officer being presented with numerous positive character references for the Claimant, the appeal was rejected and the Claimant lodged a tribunal claim for wrongful and unfair dismissal.
The tribunal hearing
At tribunal, the wrongful dismissal claim failed. The judge decided that the wording on the mug was “not borderline material” but was “objectively offensive” and “bringing that offensive material into work was fundamentally incompatible in a grave way with [the Claimant’s] contract of employment”.
Despite the mitigation, the judge decided that dismissal was within the range of reasonable responses, even though “some employers would have taken a very different approach… and imposed, perhaps a final written warning”.
Various procedural arguments were put forward by counsel for the Respondent, however these were also dismissed by the Judge.
What employers can learn from the case
- It is vital to have clear policies on equal opportunities and harassment. These should set out what is unacceptable and the potential sanctions for breaching the policies.
- Employees should also receive training on these policies.
- Keep a record of the training and require those who attend to sign and date their attendance.
- Think carefully about whether or not suspend an employee during a disciplinary investigation, explain your reasoning to the claimant and record it in a letter to the employee.
- Make sure the invite letter to the disciplinary hearing accurately sets out all the individual charges, which are alleged acts of gross misconduct, and the potential outcome if any or all the charges are upheld. If the charges are gross misconduct, use the words: “You may be dismissed” as opposed to “ You will be dismissed” which suggests predetermination.
- The letter should also: (a) include a copy of all the evidence which is to be considered; (b) notify the employee of their right to representation; and (c) be sent far enough in advance of the hearing to give the employee an opportunity to prepare.
- The hearing officer should prepare for the hearing by carefully reading the evidence and the relevant policies, preparing questions to ask the employee and carrying out further investigation if it is clear that it is needed – even if that requires the hearing to be postponed. Any further evidence should be sent to the employee before the hearing.
- The importance of good hearing notes cannot be over-emphasised. Ideally, the hearing officer shouldn’t take the notes as it disrupts the flow of the hearing and questions and answers may not be recorded properly. There should be a separate note taker, and not just the first person who is available on the day – it should be someone who can write quickly and accurately capture the questions and answers.
- The hearing officer should check the notes after the hearing and then get the Claimant (and their representative, if there is one) to sign that the notes are accurate to prevent any future disputes about what was said.
- Ensure the outcome letter from the disciplinary and appeal hearings record each hearing officer’s thought process, including: (a) what mitigation was considered and if it was insufficient, why; and (b) what alternative sanctions were considered and if they were rejected, why.
- The appeal hearing officer should not be afraid to conduct further investigations and/or overturn the disciplinary hearing outcome if that is the right decision. The appeal hearing is not a rubber-stamping exercise.
- Both hearing officers should adjourn after the hearing to carefully consider whether the charge is upheld and, if so, what sanction to impose. No adjournment or a short adjournment suggests either no real thought went into the decision or the decision was pre-determined.
- Neither hearing officer should ask someone else what the outcome of the hearing should be or be put under pressure to dismiss or use the allegation(s) as an excuse to dismiss for another reason e.g. there’s an impending redundancy process which would result in the employee receiving redundancy pay; the employee has a poor sickness absence record (perhaps disability related) which it is not as easy to dismiss for; or the employee is a generally difficult individual who the company has wanted rid of for years but haven’t had the opportunity.
For me, the case leaves one unanswered question – If the Claimant’s friend and colleague was the one who put the mug in the cupboard, then surely he was as culpable, arguably more so as the Claimant thought his friend had taken the mug home? We have not heard whether the colleague was disciplined.
About the author
Simon Robinson is an Employment Law Partner at gunnercooke LLP, who were shortlisted for ‘Law Firm of the Year’ at the 2016 British Legal Awards. You can read Simon’s regular guest articles for KD HR Solutions here