Is it fair to dismiss an employee without notice for swearing?

The only way to dismiss an employee without notice is if they are found guilty of gross misconduct.

If the employee has over 2 years service a fair procedure must be followed no matter the seriousness of the conduct otherwise the employee may have a valid tribunal claim.

It is really important to consider the swearing in context. For example in one case a gardener used absence language following unfounded criticisms by the employer and the tribunal held that this did not constitute gross misconduct. This case involved a one off incident that could have been resolved by the parties.

Consider the following when deciding whether swearing is gross misconduct:

• Culture – is bad language tolerated and/or used all the time for example swearing in a kitchen could be viewed differently to swearing in an office.
• Reputation – has the swearing caused any damage to the employer’s reputation?
• Should the parties know better – the more senior the person the less tolerant of the language.
• Mitigating circumstances – was the employee provoked; did they show remorse and apologise? Is there a reason for example an illness or personal circumstance?

It is unlikely for a one off incident to warrant instant dismissal, however in a recent case the tribunal found that “by a very slim margin” it was fair to dismiss an employee for telling her line manager to “fuck off”.

If you are going to dismiss without notice following swearing it is crucial to check that you have followed a fair procedure and have clear disciplinary polices in place. For advice about how to dismiss fairly or if you are subject to a disciplinary please contact me at kate.brooks@ellisjones.co.uk.