In Ogden v Booker Limited, an employment tribunal held that dismissing an employee for gross misconduct was unfair owing to, among other things, a lawless workplace culture where managers failed to enforce dignity at work standards.
What happened?
Mr Ogden joined Booker Limited (Booker) as a driver/trainer in 2016.
On 4th August 2023, a female colleague raised a formal grievance against Mr Ogden. She complained that he had been very aggressive towards her and had used terms such as ‘f***ing’ and ‘m**g’ during an office conversation in front of other employees. The colleague said that Mr Ogden’s comments left her feeling humiliated, violated and shocked, prompting her to take time off work.
The company suspended Mr Ogden and investigated. Mr Ogden admitted using offensive language but denied he had done so maliciously. He said Booker had failed to set any workplace standards. He claimed that the culture was toxic with widespread inappropriate behaviour, that his female colleague participated in the office ‘banter’ and that she ‘gives as good as she gets’.
Booker dismissed Mr Ogden for gross misconduct. After unsuccessfully appealing, Mr Ogden brought a claim for unfair dismissal.
What did the employment tribunal decide?
The tribunal decided that Booker had a toxic and lawless office culture, with no real enforcement of expected workplace norms by managers. The tribunal noted that the grievance manager had not said anything when Mr Ogden used expletives during the meeting. The tribunal also found that the evidence supported Mr Ogden’s contention that his colleague had taken part in the banter, pranks, and inappropriate conduct.
In the tribunal’s view, a reasonable employer would have considered these cultural issues relevant to the disciplinary process and would not have ‘brushed’ them aside.
Turning to the company’s dignity at work policy, the tribunal found that training and implementation of dignity in the workplace standards was woeful.
The tribunal said that Booker should have conducted compliant processes given that it is a well-resourced organisation with significant HR support. It found that no reasonable employer would have proceeded to the end of its internal processes without having considered the more substantive failings, weighed up the unusual features of the lawless workplace, and the apparent singling out of Mr Ogden.
Having made these findings, the tribunal held that the company’s decision to dismiss Mr Ogden was outside the range of reasonable responses and that a written warning would have been more appropriate.
The tribunal upheld Mr Ogden’s unfair dismissal claim.
What should you do?
- Ensure your organisation has a culture of dignity in the workplace and a zero-tolerance approach towards inappropriate and offensive conduct, bullying, and banter.
- The basic rule should be that jokes, remarks or banter that might offend another employee on any grounds will not be permitted.
- It is essential to have a robust anti-bullying policy embedded in the organisation and communicated effectively to employees and contractors. Regularly monitor and review the effectiveness of the policy.
- Train your managers. They have a crucial role in creating a working environment free from inappropriate conduct, bullying, and harassment. Complaints about workplace behaviour must be taken seriously and investigated thoroughly.
Source: Ogden v Booker Ltd ET/2400482/24