The case of Ms K Herbert v Main Group Services Ltd centres around a claim brought by Ms Herbert against her former employer for unfair dismissal.

This case made the headlines after it was reported that Ms Herbert was dismissed from her role in a scaffolding company, owned by her brother-in-law and her sister-in-law (Mr and Mrs Swannell), after referring to the two directors as “two d***heads”.

Ms Herbert had worked for the company for three-years which belonged to her brother-in -law (Managing Director of the company), who was married to her husband’s sister. She found some documents in Mr Swannell’s desk drawer, setting out the cost of Ms Herbert’s employment to the company. This upset and angered Ms Herbert, as she believed that her employment was about to be terminated.

Following this, a contractor for the company, made complaints against Ms Herbert stating that he had seen her lose her temper and kick a printer, that she was unprofessional and didn’t carry out the jobs that fell within her remit.

Ms Herbert attended a meeting, on 20 May 2022, with Mr Swannell to discuss the allegations made against her and although both Ms Herbert and Mr Swannell gave different accounts of that meeting, the Employment Tribunal favoured the evidence of Ms Herbert and her admission that she stated:

“if it was anyone else in this position they would have walked years ago due to the goings on in the office, but it is only because of you two dickheads [in reference to Thomas and Anna Swannell] that I stayed”

Ms Herbert stated that this comment was a joke and was in the manner consistent with which she and Mr Swannell would normally communicate with each other.

In response to Ms Herbert’s comment, Mr Swannell dismissed Ms Herbert, without notice, told her she was ‘sacked’ and to “f*** off”. When Ms Herbert sought to clarify this by asking if she was being dismissed, Mr Swannell confirmed this.

Following the meeting and dismissal, Ms Herbert wrote to the company giving her perspective of what had taken place and confirming that she had been dismissed but then received a response, from the company, denying the dismissal and stating that she was suspended pending an investigation.

Ms Herbert brought a claim for unfair dismissal and wrongful dismissal in the Employment Tribunal.

The Tribunal decided that Ms Herbert was dismissed in the meeting of 20 May 2022 and that the subsequent disciplinary investigation that was carried out had been “contrived in order to seek to show that a fair procedure had been followed”.

The Tribunal found that the dismissal was procedurally unfair due to the lack of proper process.  This was, evidenced by Ms Herbert’s immediate dismissal without warning or notice and the lack of evidence to suggest that the company had made any attempt to contact Ms Herbert, following the meeting on 20 May 2022, until receiving a letter from her confirming her dismissal.

When considering the comment made by Ms Herbert about the two directors, the Tribunal accepted that the comment was inappropriate but considered it to be a ‘one-off’ incident.  It concluded that the conduct did not amount to gross misconduct or serious misconduct and that summary dismissal was not reasonable in the circumstances.

This case illustrates the importance of following a fair disciplinary process, including investigations, before deciding to dismiss an employee.

For Employment Law advice, please contact our Employment Team.