Background:

The claimant worked for the respondent as a driver/trainer from February 2016 until his dismissal in October 2023. The respondent states that the claimant was dismissed by reason of gross misconduct due to breaching the dignity at work policy. This arose from an incident in July 2023 when the claimant, in the context of dieting, said to a female colleague that she was a ‘fucking mong’. The Tribunal accepts that with ‘mong’ the claimant did not mean it in relation to any protected characteristic but rather as a vague term of abuse for someone considered as stupid or foolish. The Tribunal did reference to the Oxford English Dictionary in that regard. The victim, as referred by the Tribunal, made a grievance and also outlined that there were management staff there who did nothing about the comments made at the time.

This led to an investigation and disciplinary meeting in which the claimant was dismissed.  He brought a claim for unfair dismissal.

Outcome:

The Tribunal in examining the evidence found that the words were offensive and the respondent was entitled to undertake an investigation. They also held that it could be a potentially fair reason to dismiss based upon a prima facie breach of the dignity at work policy and the disciplinary procedure. However, when it came to the procedure it was found that it was not reasonably fair. One of the major elements in that was when the Tribunal looked at workplace culture but that was regarded, by the respondent, as being outside the process. The Tribunal noted that the use of language may have been part of the workplace, and wider culture. The management may have, through the failure to enforce standards, allowed for a culture of ‘banter’ to arise. This led to the claimant and others not being pulled up before for comments and that led to a false sense of security in that form of language.  Indeed, the Tribunal noted that the use of the ‘f word’ may have been more common in Northern England than in other parts and it may have been used publically. Bearing this in mind, it was held that the dismissal was not in the band of reasonable responses.  Accordingly, the claimant was successful in his unfair dismissal claim.

Practical Guidance for Employers:

An interesting case about workplace culture and how a sub-standard culture can be facilitated by inaction from management. The Tribunal notes that there were similar incidents that were allowed and by taking action against only one and not examining the culture it led to an unfair process against the claimant.  A primary learning point arising is ensuring that the policies and processes are followed rather than allowing that culture of ‘banter’ and, in addition, when such an issue does arise the investigation ought to look at the wider culture to ensure that an individual employee is not being the ‘fall guy’.

https://assets.publishing.service.gov.uk/media/672346d63ce5634f5f6ef5b0/Mr_R_Ogden_v_Booker_Limited_-_2400482_2024_-_Reserved.pdf