Delivery driver’s dismissal after ‘unlawful’ and ‘dysfunctional’ workplace swearing incident was unfair, court rules

A delivery driver was unfairly dismissed following an incident in which he used the words ‘fucking’ and ‘mong’ towards a colleague, a court has ruled.

Manchester court He heard the person who received Rob Ogden’s comments felt “violated and shocked” and humiliated in front of managers and other staff in the office.

While the court acknowledged that the language used was “offensive” and said it “may have crossed the line”, it ruled that Booker’s company should have taken into account the “toxic”, “dysfunctional” and “lawless” atmosphere in the workplace.

“Everyone in the office suggested that the plaintiff was the person who did not have a chair when the music stopped,” said Shergill, the labor judge.

“There was a real sense that he was setting an example, and that was unreasonable in the context of significant failures of duty and process that were clear to everyone.”

Background

Ogden, whom Booker had employed as a driver/trainer at the Royton facility since February 2016, was terminated on October 26, 2023.

On August 4, 2023, a female colleague filed a complaint against Odgen. He claimed the plaintiff used “very aggressive” language towards him during a conversation about donuts and a weight loss club on July 26.

The court heard the plaintiff used the words ‘damn’ and ‘mong’ together or in the same sentence towards his colleague. The woman said she felt “violated and shocked” and humiliated in front of managers and staff in the office.

Ogden admitted saying: “You can’t do this, are you a fucking mafia? “No wonder it takes you 19 weeks to lose a stone, it didn’t take me 19 weeks.”

He refused to use the word “mong” to refer to individuals with Down syndrome, arguing that it was a Northern slang term meaning “fool”. However, the court found this offensive in the workplace environment and considered it a possible violation of workplace discipline.

Despite this, the court acknowledged that the plaintiff did not use the word as a protected characteristic, finding that this did not include “racist ‘N-word’ and ‘P-word,’ or homophobic terminology ‘P-word’ or ‘F-word,’ etc.”

The court also said that swearing should not be accepted in the workplace, but that the use of the ‘F-word’ was “common daily experience, particularly in the North”.

Following the incident, the woman took some leave from work. In her complaint letter, she stated that it was difficult to file a complaint but did so because she felt humiliated and anxious. He asked for precautions to be taken for both himself and other employees to prevent such incidents from occurring in the future.

Speaking to a witness named GS after the incident, the woman said she was “sick and tired of this”. GS explained that when he first started working in the office, some managers behaved “strangely” towards him. GS stated that others “made fun of” him and one manager “made fun of him,” which contributed to him feeling unwelcome.

The court accepted the suggestion of the investigating officer, referred to as MN, that the plaintiff’s actions were “the last straw” not only for him but also for the victim’s perception of his working relationships with others.

On July 27, when another witness, identified as MF, asked the plaintiff if he would apologize to the victim for his comments, the plaintiff allegedly responded, “I don’t care, I don’t like him.” However, Ogden denied being asked to apologize during the investigation, calling MF a “lying bastard”.

The court accepted that denying Ogden the opportunity to resolve this issue by re-interviewing MF was a “material flaw” in the investigation and that no reasonable employer “could ignore such a serious matter”.

Another witness, referred to as PV, justified the plaintiff’s denial by saying: “Ogden did not show any remorse during or immediately after the incident and only apologized when the investigation was launched.

“Furthermore, I did not believe that Mr. Ogden, should he return to the defendant, would not repeat the language and manner used and that he performed his duties in accordance with the workplace dignity policy.”

Odgen claimed that he had the opportunity to see the victim for the first time after the incident on August 17, the day he apologized. However, the victim stated that there was a general perception between MN and PV that it was “too little too late”. The court found that the fact that the two parties had limited opportunities to interact together in the office supported the plaintiff’s claim.

The court heard witnesses disagreed on whether the plaintiff had been aggressive, but there was no allegation of physical assault by anyone. However, he assessed that “all the evidence shows that he is the exact opposite of ‘speaking softly’.”

GS stated that he had never seen the plaintiff have such bad intentions before and added: “I have never seen him speak negatively to anyone.”

The court said that there was a generally mixed picture among the eyewitness accounts of the incident, but the results of the investigation indicated that the plaintiff “witnessed verbal aggression”. It found it was “unclear” whether the investigation took into account that Ogden had an exemplary record when making allegations of verbally aggressive behavior.

The court suggested that it could be inferred that PV had determined that the words alone, rather than the delivery of the words, had violated the honor policy; However, he pointed out that if the allegations were true, that was not what the termination letter implied. It was stated that an alternative view was that the mitigating decision was referenced post-judgment and was not actually part of the dismissal consideration.

“Any of these outcomes have a potentially significant impact on the case and raise concerns about irregularities,” the judge said, adding: “I am not satisfied that a reasonable employer would proceed with a disciplinary process or outcome in this manner.”

During the investigation the claimant told PV that there was a wider culture in the workplace, describing it as “toxic” and “lawless”. He cited incidents such as the shift manager pouring candy on the victim’s head, “mutual banter” and the use of inappropriate terms such as “mullet”.

Other interviewees painted a similar picture of “dysfunction, hilarity and jokes”, the court heard, and said there was a significant amount of “banter” going on in the office and the victim was “part” of it.

“I am satisfied that, on my assessment, there were many participants in this unprofessional conduct, including the plaintiff and the victim, and that this was a dysfunctional and apparently toxic office,” the judge said.

The judge questioned why PV dismissed these cultural issues as irrelevant to the disciplinary process and suggested that “a reasonable employer would weigh the issue to consider how it affected the fairness of pursuing the claimant and what sanction to impose”.

Additionally, when MN met with a manager in the same office, referred to as PF, about changing the workplace culture, he assured her that “there was no threat to you” and gave what the court described as ” effective amnesty” despite PF having “a widespread history of poor compliance and enforcement of appropriate workplace behavior.”

This interaction supported the plaintiff’s claim that she was unfairly “singled out,” with allegations that the rules were applied inconsistently to other employees and that managers, including PF, were causing “problems in the office.” Ogden also asked why the business ignored other violations of its workplace dignity policy.

Judge’s comments

“I am confident that no reasonable employer could proceed to the end of its internal processes without at least addressing the more fundamental defects and weighing the unusual features of the ‘lawless’ nature of the workplace and expressly excluding the claimant,” Shergill said.

The judge also concluded: “There was a failure to consider the plaintiff’s behavior in the context of a toxic, dysfunctional office where managers in the office were complicit in that dysfunction. “This situation has been exacerbated by the general lack of enforcement of standards, leading to a ‘joke’ culture.”

Shergill noted that the defendant was unable to reconcile the impact on the victim of expecting an apology with the practicality of when this could be done as he was away from the office for an extended period of time.

He said the plaintiff’s comments were “offensive and may have crossed the line” but added: “Given no prior notice that this conduct constituted a criminal offence, the decision was made to dismiss the plaintiff after holistically evaluating all flaws and concerns. Process failures are harsh.”

“The rejection decision was framed as if the procedural flaws were a factor apart from the evaluation of the case,” the judge said. “The public person in the office suggested that the plaintiff was the person who did not have a chair when the music stopped. “There was a real sense that he was setting an example, and that was unreasonable in the context of the public office and the significant failures in the process.”

Comments of the lawyer

Sarah Collier, Bermans’ business partner, said “on the facts, this case appears to be a fairly simple dismissal for conduct which would probably result in a fair dismissal for gross misconduct.”

He added that the plaintiff was dismissed because he acted aggressively and “made derogatory and offensive comments to a colleague”, which is usually grounds for dismissal.

However, Shergill’s findings revealed a worrying workplace culture; Collier said this serves as a “reminder to employers of the need to foster a positive, inclusive workplace culture that actively addresses misconduct through internal disciplinary channels, rather than allowing bad behavior to go unaddressed.”

Collier said employers must ensure “consistency of disciplinary sanctions across the organisation” to maintain “fairness and equality”, noting that inconsistency could create the risk of unfairly excluding certain employees.

Shergill’s findings described the company culture as “toxic” and “lawless”, standards of conduct were inadequately enforced and underlined the need for robust internal procedures.

“Employers should train staff on company values ​​and expectations for behavior at work,” Collier added, “stressing the importance of workplace dignity training and rigorous monitoring of attendance to ensure everyone in the workforce attends training sessions and has a record of their work.” participation”.

The lawsuit also highlighted procedural shortcomings, such as delays in producing accurate meeting minutes, which Collier flagged as “potentially significant to a fair process.”

These notes had “no missing questions and no signatures,” raising questions about the thoroughness of the investigation. “This demonstrates the importance and significance of having accurate and comprehensive notes of internal processes signed and produced in a timely manner,” Collier said.

“Employers must not only conduct fair investigations but also document them meticulously, as any disruptions may impact the fairness of the dismissal process.”

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