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O v TC Facilities Management

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Last updated 16th March 2021.

The claimant’s employment was terminated without notice due to his alleged “verbal and threatening behaviour towards management” at a meeting. Part of the problem was him speaking loudly and quickly at the meeting – he had a stammer which caused him to do this when trying to communicate under stress. The employment tribunal rejected his claims for unfair dismissal and wrongful dismissal. He did not make an Equality Act claim (comment below).

Employment Tribunal, 2020. Full decision (gov.uk).

Facts

The claimant managed the cleaning operation at a large supermarket, which was contracted out to his employer. The claimant’s line manager started a disciplinary procedure against him for having a poor attitude towards the line manager. The claimant was sent an invitation letter for a disciplinary hearing to be conducted three days later. The line manager came to the supermarket with another manager to conduct the hearing. The claimant had not received the invitation letter and so was shocked. They went to a place which was private to have the disciplinary meeting.

The employer argued afterwards that the claimant’s conduct at the meeting amounted to gross misconduct entitling the employer to terminate his employment without notice. The tribunal found that:

  • The claimant was agitated, upset and angry at being taken by surprise and subject to what he felt was an unfair allegation of misconduct.
  • The claimant refused to participate in the meeting on grounds that he had not been given prior notice and that the line manager was not the appropriate person to conduct it (since he was the complainant).
  • The claimant said that the disciplinary allegation was untrue, and said to his line manager “you are lying to my face”.
  • The claimant spoke quickly and at a raised volume, although he was not shouting. The claimant had a stammer which caused him to speak loudly and quickly when trying to communicate under stress.
  • The line manager asked his colleague to minute that the claimant was shouting and being aggressive. This had the effect of inflaming the situation, as the claimant had not intended to be aggressive and perceived this as a further injustice.
  • The claimant lost his temper and told his line manager to “f… off”.
  • The claimant made a further comment which the managers heard or remembered differently but which they both understood to be threatening. This was not the claimant’s intention and there was some misunderstanding about the words he had used.
  • His line manager told the claimant he was suspended. The claimant, who had been starting to walk away, turned back, called his line manager “an idiot” and left.

This resulted in a disciplinary hearing as to how he had behaved at that meeting. The hearing was conducted by telephone conference call due to the coronavirus pandemic. The tribunal said that throughout the hearing the claimant spoke fast and loudly – compensating for his stammer caused him to do this when under emotional stress. The manager conducting the hearing found him difficult to interrupt and therefore found it hard to control the flow of the conversation. The tribunal said the claimant did not shout or speak aggressively.

The result of this disciplinary hearing was that the claimant was summarily dismissed for gross misconduct for “verbal and threatening behaviour towards management” at the earlier meeting. Following an appeal hearing, the employer confirmed this decision. At one point in the appeal hearing the claimant was frustrated when a manager asked him to calm down and suggested he was shouting. He replied, “I’m not shouting this is how I speak”. One point made by the manager who heard the appeal, to justify upholding the dismissal, was that “Throughout the appeal hearing you also raised your voice on numerous occasions towards myself”.

Held: his claims for unfair dismissal and wrongful dismissal failed.

Employment Tribunal decision

Unfair dissmissal

There was no claim under the Equality Act 2010. This was a claim for unfair dismissal under the Employment Rights Act 1996.

The tribunal held that the employer had a genuine belief that the claimant was guilty of misconduct, that it had carried out as much investigation into the matter as was reasonable in the circumstances, that there were reasonable grounds for the employer to conclude he had committed misconduct, and that the employer had followed a fair procedure.

The final question in relation to unfair dismissal was whether the decision to dismiss was reasonably open to the employer in the circumstances. The tribunal held it was. Another employer might reasonably have considered the claimant’s long record of good service and the provoking circumstances which caused him to lose his temper as sufficient mitigation to dismiss with notice or impose a final written warning. However, summary dismissal was within the band of reasonable responses open to the employer in the circumstances. Therefore, the claimant’s dismissal was fair.

Wrongful dismissal

The issue here was whether the claimant had committed a repudiatory breach of contract such that the employer was (under contract law) entitled to dismiss him without notice.

The tribunal’s findings of fact as to what happened at the meeting amounted to misconduct which was less grave than the allegations the employer’s disciplinary and appeal managers had in mind. On the balance of probabilities, the tribunal did not find that the claimant shouted and screamed at his line manager, nor that the claimant made a threatening comment. The tribunal accepted the claimant’s evidence that he had not intended to act aggressively.

However, the result of his conduct at the meeting was that the line manager and his colleague were genuinely shaken. The tribunal found that the claimant lost his temper, raised his voice, accused the line manager of lying, called him “an idiot” and told him to “f… off”. The claimant’s loss of temper was the result of a provoking set of circumstances. He was startled to be told he faced an immediate disciplinary hearing conducted by the same line manager who was the complainant against him. However, his reaction was disproportionate. It was sufficiently grave to undermine the trust and confidence which is inherent in the employment relationship. It amounted to gross misconduct and the employer was entitled to summarily dismiss him.

My comments

Comments: Might an Equality Act claim have succeeded?

No claim under the Equality Act was made. We do not know what the result would have been if one had been made. Assuming the stammer was a disability, possible claims would have included:

  • discrimination arising from disability under s.15 EqA:
    • One requirement for s.15 is that the employer knew or should have known of the stammer, but if the employer did not know the claimant could easily have remedied this by telling them.
    • There would be question whether anything arising from the stammer was a significant part of the reason why he was dismissed. Quite possibly the tribunal would have concluded that his speaking loudly and quickly (due to the stammer) was a significant part of the reason, especially since this provoked an accusation of him shouting and being aggressive which (the tribunal said) had the effect of inflaming the situation. His speaking loudly at the appeal hearing may also have influenced the dismissal. (Also the disability need not be the only cause of the offending behaviour (Risby case), eg the person might also have a somewhat short temper).
    • There would then be the question whether the employer could show that the dismissal was “proportionate” in all the circumstances, under the objective justification defence, given the way the effects of his stammer were misinterpreted.
  • Although s.15 would probably be the main claim, it might be argued that the employer’s response to his speaking loudly at the meeting due to his stammer (accusing him of shouting and being aggressive) was disability-related harassment contrary to Equality Act.

Comments: difference between unfair dismissal and Equality Act

Unfair dismissal under the Employment Rights Act 1996, the main claim made in this case, is an easier test for the employer to meet than “proportionality” under the Equality Act. For unfair dismissal the tribunal looks at whether the employer’s action is within the range of possible reasonable responses open to the employer (and the tribunal must not substitute its own view of what was fair), whereas under the Equality Act the tribunal itself decides whether the employer’s action is proportionate. (There are also other differences between unfair dismissal and Equality Act claims: see Losing one’s job>Unfair dismissal).

Comments: Other cases on raising one’s voice due to a stammer

This is only one of at least three cases where a claimant argued that behaviour perceived as shouting or threatening, which led to their dismissal, was a result of their stammer. See Losing one’s job>Misconduct, such as sounding “aggressive”.

20th anniversary of stammeringlaw, 1999-2019