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‘Bar Room Language’ Dismissal was Unfair

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

A senior employee who admitted directing ‘bar room’ language towards a colleague was unfairly dismissed because the termination of his employment was not within the reasonable range of responses open to his employer. However, the employee’s own contributory fault will result in a 55% reduction in his compensation award.

The employee, who held a managerial role within an organisation that provides social housing, accepted that he had used offensive and abusive language and was dismissed on grounds of gross misconduct. However, by a majority, an employment tribunal (the tribunal) upheld his unfair dismissal claim after noting the degree of provocation to which he had been subjected, his expressions of remorse and the long delays that had afflicted the internal disciplinary process.

In dismissing the employer’s appeal against that decision, the Employment Appeal Tribunal (EAT) agreed with the tribunal majority that, although a final warning would have been merited, dismissal was not an option that fell within the band of reasonable responses to misconduct which was at lower end in terms of seriousness.

The employee had challenged the tribunal’s finding that his award should be reduced by 55% on grounds of his contributory fault. Dismissing his cross-appeal, however, the EAT said that he was not ‘a blameless person’ and the assessment of his level of fault was a matter for the tribunal.

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