An office manager who called her manager and another director ‘dickheads’ during a meeting was unfairly dismissed, a tribunal has ruled.
Kerrie Herbert worked for Main Group Services, a scaffolding and brickwork company, alongside her brother-in-law and sister-in-law, Thomas and Anna Swannell, who were operations manager and managing director respectively.
Her role included the day-to-day running of the office, carrying out tasks such as overseeing payroll, arranging meetings and covering office duties in the absence of administration staff.
There was some dispute as to whether Herbert had received a contract of employment as soon as she began working for the firm in 2018, or whether there was a second one given in October 2019.
During the first national lockdown due to the pandemic, she was placed on furlough between March 2020 and September 2021.
Between March 2021 and October 2021, Herbert made nine separate loans to the company to help with cash flow. These were later repaid.
In November 2021, she was informed that she would no longer be entitled to receive enhanced company sick pay as her initial contract had stated. A month later, she agreed to take a salary reduction for six months from £40,000 to £35,000.
In May 2022, she accessed a digital copy of her contract, and amended the section entitled ‘rate of pay’ so it reverted back to the higher salary.
She told the tribunal she did not make any further changes, and noticed that the contract still showed her to be entitled to full sick pay when absent.
Later that month, she was looking for something in one of the managers’ drawers to complete an admin task and found documentation setting out the cost of her employment to the business. She told the tribunal this was “extremely upsetting”, and that she felt angry at the possibility of her role being terminated.
The company disputed this account of events. One of the managers told the tribunal that Herbert had unexpectedly lost her temper and began “shouting and screaming” and kicked the printer, causing some damage.
One of Main Group’s subcontractors had also complained about Herbert’s behaviour in a professional environment, a lack of care and attention to deal, and refusal to carry out daily tasks within her remit.
Later that day, she was invited to a meeting to take place the next Monday, but she asked for it to be brought forward to the same day as she was a “worrier”.
At the meeting, her manager told her they were not happy with how she managed the office, that some suppliers were not being paid on time and that there were some issues with bookings.
The atmosphere at the meeting became heated, and she began to cry. When asked how the company should proceed, she stood up, placed both her hands on the desk and said: “If it was anyone else in this position, they would have walked years ago due to the goings on in this office, but it is only because of you two dickheads [the Swannells] that I stayed”.
Herbert told the tribunal that this comment was meant as a joke. She said that her manager responded: “Don’t call me a fucking dickhead or my wife”. She then asked if her employment had been terminated, and was told, “yes I have, now fuck off”.
At tribunal, Swannell denied telling Herbert that her employment had been terminated, but the judge preferred the claimant’s account of events.
Following the heated meeting, there was an exchange of correspondence between the firm and Herbert, including inviting her to a disciplinary meeting over Teams.
She responded that she would not be attending any disciplinary procedure as she was no longer an employee.
She was later sent a disciplinary report outlining that she had been paid throughout the disciplinary process, that the company had followed its disciplinary procedure, and that she had not appealed or raised a grievance.
In July 2022, she was summarily dismissed for “displaying unsatisfactory standards of work”, that customers had made complaints, and for amending terms in her contract of employment. She received her P45 soon after.
Judge Sonia Boyes found that Main Group Services had not “acted reasonably” in the way in which Herbert was dismissed.
She found that Herbert had made a “one-off comment” during a “heated meeting” and – while this was not acceptable – it did not amount to gross misconduct or something so serious as to justify immediate dismissal.
In context, Judge Boyes said, she did not believe the comments during the meeting “amounted to a repudiation of the whole contract”, so she had been unfairly dismissed.
A further claim for unpaid holiday was not successful.
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