Employee unfairly dismissed after he used lewd sexual language in training sessions Booth v Bridgestone UK Ltd (1300461/2018)
In the case of Booth v Bridgestone UK Ltd (1300461/2018), the Claimant was employed by the Respondent as a Business Development Manager. The Respondent, despite the Claimant’s objections, requested him to deliver training on its behalf. After the Claimant’s last training day, one named and several anonymous complaints were submitted to the Respondent complaining about the Claimant’s use of lewd sexual language in his training sessions. The Claimant was summoned to a disciplinary and following an appeal, dismissed. The Claimant lodged a complaint of unfair dismissal which he won, based on the fact the Tribunal did not believe the Respondent had acted reasonably. However, damages were reduced by 50% due to the Claimant’s behaviour.
The facts in Booth v Bridgestone UK Ltd (1300461/2018)
The Clamant started employment with the Respondent who was a rubber tyre manufacturer, on 22 July 2010. While the Claimant had experience in the automotive industry, he did not have experience in training and that, that he did have, was informal and built up organically.
In 2016, the Respondent signed a valuable contract with Halfords to deliver training and the Claimant was asked to take on the role. The latter was reluctant to do so but the Respondent promised support to deliver it and to cover his existing clients. By May 2017, a training programme was agreed; however, the Claimant had not received support for his workload and was attempting to juggle many responsibilities singlehandedly. The Claimant, who suffered from Crohn’s disease and in the past, had had a minor stroke, found the travelling and overnights for the training sessions stressful, slept little and could not focus. The Claimant sought advice from his GP and finally managed to negotiate a reduction of training sessions so that he only had to complete three more, through June and July 2017.
After the last training session on 25 July 2017, 20 out of 21 feedback forms were submitted to the Respondent. All were positive about the Claimant’s teaching. Mr Turner, a fellow employee of the Respondent’s, who had observed, also supported the Claimant.
On 26th July, the Respondent received a forwarded email from the 21st attendee at the course, a Mr Brosnahan, who cited ten complaints about the Claimant’s language and behaviour most of which he stated, included sexual innuendos and lewd comments. Halfords then forwarded 7 anonymous statements from attendees, who despite, initially giving the Claimant a positive review, now made adverse references to the Claimant’s training style.
The managers at the Respondent (Mr Thomas and Mr Edden) that supervised the Claimant, considered that there was a case of gross misconduct to answer, called in Mr Turner (the observer) who admitted that some language had been “near to the knuckle”. At the meeting, Mr Thomas was recalled as saying that in order to keep Halford’s business they would need to “do the right thing”.
The Claimant was called to attend an investigation meeting on 4 August 2017 at which he stated that he trained no differently on that course as any other and no complaints had previously been made. However, he admitted that some of the language was unacceptable and he would be happy to have more training to learn techniques as he was keen to keep his job. The Claimant was then called to a disciplinary hearing on 15 August but the hearing was delayed due to his ill health and eventually held on 27 September. At the hearing, the chair, Mr Sage, outlined the options open to him including final warning, suspension and summary dismissal.
On 10 October, the Claimant received a letter detailing the outcome which was summary dismissal due to the fact that the Claimant had admitted to the behaviour and because despite his 8 years’ service, that behaviour could not be condoned. The Claimant appealed but lost.
The decision of the Employment Tribunal
The ET considered the relevant parts of the Employment Rights Act 1996 (ERA 1996), that is, sections 98(1), (2) and (4). The tribunal found that the Respondent had a genuine belief that the Claimant had made offensive comments at the training and had reasonable grounds on which to base these views as the majority of the anonymous statements from Halfords confirmed them.
Ultimately, however, the tribunal felt the investigation could have been fairer and followed ACAS guidance in considering evidence that supported as well as well as detracted from the Claimant’s case. For example, Mr Turner, having initially supported the Claimant had done a volte face and this may have been because of commercial pressure to retain the contact with Halfords; the judge also considered that the matter should have been investigated by a third party and not the Claimant’s supervisors.
Finally, the judge looked at the decision to dismiss summarily and put section 98(4)(a) to the test stating that this was the ultimate reason that he considered the dismissal unfair. He questioned whether the Respondent’s reaction was within the band of reasonable responses. Was the Claimant’s behaviour sufficient to justify summary dismissal?
The judge thought not. Dismissal was not the only option: the Claimant had apologised, maintained that he had warned the Respondent that he was insufficiently trained, was keen to undergo training so that the incident would not happen again in order to retain employment with the company and that he would accept a written warning. Also, documentation did not show that there was a serious risk that this would happen again. Yet, Mr Sage had not taken any of this into account in considering a lesser sanction than dismissal and the appeal did not rectify this.
The judge finished by indicating that he would be invoking sections 122(2) and 123(6) ERA 1996 because the dismissal had been contributed to by the action of the Claimant and there should therefore be a 50% reduction in the basic and compensatory awards.
Our solicitors’ view of Booth v Bridgestone UK Ltd (1300461/2018)
Caroline Lewis, specialist employment lawyer at Redmans Solicitors, commented on the case: “This case is a useful reminder of the legal tests for unfair dismissal. Firstly, is there a potentially fair reason for dismissal? This could be conduct, capability, redundancy, breach of some legal rule or some other substantial reason. Once this has been established, the Tribunal needs to decide whether the employer acted fairly and reasonably in all the circumstances, taking account of the size and resources of the employer and equity and merits of the case. Acting fairly in all the circumstances is key with each case being different. Ultimately the employer needs to ensure that the decision to dismissal fell within the range of reasonable responses”.