Unfairly dismissed for swearing due to toxic workplace with widespread "banter"

Unfair dismissal | banter | disciplinary procedure

In Ogden v Booker Ltd, an employment tribunal held that the employee's dismissal for gross misconduct was unfair due to procedural flaws and a lawless workplace culture that lacked managerial enforcement of dignity at work standards.

Implications for employers

  • Ensure your organisation has a culture of dignity in the workplace and a zero-tolerance approach towards inappropriate and offensive conduct, bullying, and banter.
  • The basic rule should be that any jokes, remarks or banter that might cause offence to another employee on any grounds will not be permitted.
  • It is important to have a robust bullying policy that is embedded in the organisation and communicated effectively to both employees and contractors. The effectiveness of the policy should be monitored and reviewed regularly.
  • Train your managers as they have a crucial role in creating a working environment that is free from inappropriate conduct, bullying and harassing behaviour.
  • Complaints about behaviour in the workplace must be taken seriously and investigated thoroughly.

Background

Mr Ogden commenced employment with Booker Ltd as a driver/trainer in 2016.

On 4 August 2023, a female colleague raised a formal grievance against Mr Ogden. She complained that he had been very aggressive towards her and had used terms such as "fucking" and "mong" during an office conversation in front of other employees.  The colleague said that his comments left her feeling humiliated, violated and shocked, prompting her to take some time off work.

The company suspended Mr Ogden and initiated an investigation. Mr Ogden admitted to using offensive language but denied any malicious intent. He argued that the company had not set any workplace standards and that the culture was toxic with widespread inappropriate behaviour and pranks. He said that his female colleague participated in the office "banter" and that she "gives as good as she gets". 

Following the conclusion of the investigation, the company instigated disciplinary proceedings.  

On 26 October 2023, the company dismissed Mr Ogden for gross misconduct after finding that he had breached its dignity at work policy.

After an unsuccessful appeal, Mr Ogden brought a claim for unfair dismissal in the employment tribunal.

Employment tribunal decision

The tribunal found that there was a toxic and lawless culture in the office, with no real enforcement of expected workplace norms by managers. The tribunal took into account that the grievance manager had not said anything when Mr Ogden used expletives during the meeting. The tribunal also found that the evidence supported Mr Ogden's contention that his colleague had taken part in the banter, pranks and inappropriate conduct.

There was a failure to assess the claimant's behaviour in context to a toxic, dysfunctional office where the managers in the office were complicit in that dysfunction. That was made worse by a failure to enforce standards generally thereby leading to a culture of 'banter'.

Judgment in Ogden v Booker Ltd ET/2400482/24

In the tribunal's view, a reasonable employer would have considered these cultural issues were relevant to the disciplinary process and would not have "brushed" them aside.  

The tribunal noted that the company had also not addressed the failures it had found concerning its investigation and Mr Ogden's suspension. The tribunal said that these flaws should have been weighed up as part and parcel of the disciplinary process and that a reasonable employer would not have thought that they should be "picked up" outside this process.

Turning to the company's dignity at work policy, the tribunal found that training and implementation of dignity in the workplace standards was woeful.

The tribunal said that Booker Ltd should have conducted compliant processes given that it is a well-resourced organisation with significant HR resources. The tribunal found that no reasonable employer would have proceeded to the end of their internal processes without having addressed the more substantive failings and weighing up the unusual features of the lawless workplace, and apparent singling out of Mr Ogden.

Having made these finding the tribunal held that the company's decision to dismiss Mr Ogden was outside the band of reasonable responses and that a written warning would have been more appropriate.

The tribunal upheld Mr Ogden's unfair dismissal claim.

The tribunal will decide the remedy at a separate hearing.