Facts
Mr Ogden worked as a driver/trainer at a wholesaler, Booker Ltd, from February 2016. In July 2023 he was dismissed from his job after using offensive language against a female colleague
During an office discussion about doughnuts and weight loss, Mr Ogden had said "no wonder it takes you 19 weeks to lose a stone, it hasn’t taken me 19 weeks." Mr Ogden was said to have used offensive expletives during this conversation. The victim made a complaint about Mr Ogden and it was subsequently investigated under the Respondent's disciplinary procedure.
It was the Respondent's case that Mr Ogden was dismissed for gross misconduct due to breaching its Dignity at Work Policy. Mr Ogden argued that he was unfairly dismissed because a proper process was not followed and/or the sanction was too severe.
Mr Ogden told the tribunal that the workplace culture was “toxic” and “lawless” with lots of “banter” and mutual horseplay between staff. These included references to colleagues’ weight, using the term “chubs”, chat about “fat club” and fake certificates left in the office commending the “gainer of the week”. The worker who complained about Mr Ogden was also said to have given “as good as she [got]”.
Decision
Given the duty of care owed to the victim, the Tribunal found that the Respondent was entitled to undertake an investigation and decide whether to rely on its disciplinary processes.
However, the Tribunal found that there was a significant amount of ‘banter’ and inappropriate behaviour in the office with the victim being part and parcel of it.
The Tribunal found that there was no real enforcement by managers of expected standards and norms in the workplace, and that some senior staff were part of the problem, often engaging in the 'banter' themselves. The Tribunal also found that training conducted by the employer was not effective.
The Judge noted: "I am satisfied that swearing should not be acceptable in a workplace, although common everyday experience, particularly in the North is that the F word is used quite often in the public sphere."
He went on to find that the Respondent did not follow a reasonably fair procedure before it dismissed Mr Ogden.
The Judge stated: “The free-for-all in the office suggested Mr Ogden was the one who was without a chair when the music stopped. There was a real sense of him being made an example of, which in the context of the free-for-all office and significant failings in process was unreasonable." The dismissal was therefore found to be unfair.
A further hearing will take place to decide how much compensation Mr Ogden is entitled to.
Comment
The case highlights how a positive workplace culture is crucial in mitigating the risk of Employment Tribunal claims. A workplace that ensures its management enforces a good, inclusive culture with consistent adherence to its policies and effective training from the 'top-down' will be instrumental in ensuring a positive culture which will also reduce the frequency of disciplinary matters at work.
At DWF, we can provide:
- Workplace culture audits to stress test organisational culture, identify potential behavioural risk exposure and develop risk-based remedial interventions that will actively mitigate culture risk.
- Human rights impact assessments and due diligence reviews.
- Independent reviews and/or design of ethical conduct and business integrity frameworks aligned to corporate purpose, valued behaviours and regulatory compliance requirements (including ethical decision-making and ethical business scenario analysis).
- Inclusion and diversity strategic design, development and implementation including dashboards, data and metrics, policies and procedures and global good practice.
- Tailored education programmes to embed cultural change targeting boards, executive management teams, people managers and wider employee base.
Authored by Gurvinder Bains.
