Ms A Edwards v 15 Ascensos Limited — 2018

The Claimant was a Team Leader with over five years' service. A single incident on 4 September 2017 led to her dismissal after a colleague complained that she had used the word “mongo”; the Claimant said she had used the phrase “mingo mongo maths” while trying to explain difficult arithmetic. The Respondent investigated under its anti-harassment and bullying policy, held a disciplinary hearing, and dismissed her for gross misconduct. The Tribunal found that the investigation and disciplinary documents did not clearly resolve the exact wording or context relied on at dismissal.

Applying section 98(4) of the Employment Rights Act 1996, the range of reasonable responses, and the principles in BHS Ltd v Burchell, the Tribunal accepted that the Respondent had a potentially fair reason of conduct but held that it did not have a reasonable basis for a belief that the Claimant was guilty of gross misconduct on the evidence available at the time. It preferred the Claimant's case that the Respondent dismissed for use of the word “mongo” without making a finding on the full phrase or its context. The Tribunal noted that the evidence gathered during the investigation and disciplinary process was mixed, with some witnesses supporting the Claimant's account and others giving different or incomplete recollections.

The Tribunal held that context mattered when assessing culpability and whether dismissal was justified. It found that the phrase “mingo mongo maths” was capable of causing offence and breached the Respondent's policy, but that no reasonable employer would have treated the single incident as serious enough to justify summary dismissal. The dismissal was therefore unfair. The Tribunal also found that the Claimant's conduct was blameworthy and contributed to her dismissal, so it would be just and equitable to reduce both the basic award and compensatory award by 20%.

On wrongful dismissal, the Tribunal found that the Claimant's conduct, properly understood in context, fell well short of gross misconduct. Summary dismissal without notice was therefore a breach of contract, and the Claimant was entitled to notice pay as damages. No monetary remedy was quantified in this judgment, and the remaining remedy issues were left for a further hearing on 24 July 2018.