David Cooper, employment law specialist at Excello, regularly reviews tribunal decisions to identify trends and inform clients of the latest developments in what is a fast-moving legal landscape. In recent months he has assessed a range of ‘dismissing an employee’ cases spanning discrimination, whistleblowing and unfair dismissal issues.
Read on for summaries of his latest analyses, and links to the full articles.
“You’re disorganised”: Disability discrimination and dismissal risks
In Hogger v Genesis PR Ltd, the Employment Tribunal examined how performance criticism can amount to unlawful disability‑related treatment. An employee with ADHD succeeded in claims for disability discrimination, harassment and constructive dismissal after remarks about her being “disorganised” were found to undermine her dignity and ignore the effects of her condition. The case illustrates that letting an employee whose disability might affect performance go requires careful handling, appropriate adjustments and measured language. Employers might otherwise find themselves on the receiving end of discrimination findings.
Calling a colleague “grandmother”: Age harassment and unfair dismissal
Another recent decision, in Petroi v Soho Sandwich Company Ltd, demonstrates how workplace remarks linked to age can have serious legal consequences. The tribunal held that repeated comments portraying the claimant as “old” or likening her to a “grandmother” constituted unwanted age‑related conduct and contributed to an overall breakdown in trust and confidence. The employer’s poor response to her grievances meant that her eventual departure amounted to constructive unfair dismissal. Where age discrimination concerns arise, dismissals are unlikely to withstand scrutiny.
Private WhatsApp messages and constructive dismissal
In Coleman v Thermoelectric Conversion Systems, the tribunal examined whether disciplinary action prompted by the content of private WhatsApp messages breached the implied term of trust and confidence. The employer’s approach to investigating and escalating private communications was found to overstep reasonable boundaries, entitling the employee to resign and claim constructive dismissal. The case serves as a warning that deemed misuse of private messaging, without a clear contractual or policy basis and fair process, may undermine the justification for dismissal.
Teams chats and misconduct: When dismissal goes too far
In Miller and Khokhar v BT plc, the tribunal assessed whether a dismissal based around messages posted on an internal Microsoft Teams chat could be considered fair. Despite them citing standards of conduct and zero‑tolerance policies, the employer was criticised by the tribunal for failing to consider context and broader workplace culture. The ruling reinforces that dismissal for digital communications will only be justified where employers apply reasonable responses following a thorough investigation.
Sacked for a 17p bottle of water: Misconduct, theft and fairness
The case of Oxborough v Lidl Great Britain Ltd addresses whether dismissal for an employee taking a low‑value item can still be fair. The tribunal upheld the dismissal of a long‑serving employee who took and consumed goods he hadn’t paid for (in this case a bottle of water), focusing on the employer’s clear dishonesty rules, recent training and the fact that employee trust is paramount in a retail setting. The decision confirms that employers may be justified in dismissing for minor theft where their policies are explicit and consistently enforced.
Pizza trouble: Whistleblowing and constructive dismissal
In Low v Ultra Catering, the tribunal considered the treatment of an employee who raised food safety concerns and was subsequently demoted, relocated and subjected to financial detriment. The employer’s actions entitled the claimant to successfully bring a whistleblowing‑based constructive dismissal claim. The case underlines that dismissals or detrimental treatment of an employee following health and safety disclosures expose employers to significant risk and uncapped compensation.
Vaping at work: Health and safety versus proportionality
The tribunal in Billings v Nestlé UK Ltd accepted that the defendant employer genuinely believed the claimant had breached workplace health and safety rules by vaping on site, yet still ruled the subsequent dismissal was unfair. While the investigation and belief were sound, dismissal was found disproportionate due to mitigating factors, unclear categorisation of the conduct and the employee’s long service. The case highlights that employers must still apply balance and proportionality when deciding whether health and safety breaches justify dismissal.
The phantom phone flinger: Reducing unfair dismissal awards
Linden v Norfolk Fire and Rescue Service shows how a finding of unfair dismissal will not always translate into full compensation for the employee. Although the tribunal ruled that procedural failings rendered the dismissal unfair, it reduced the basic award substantially to reflect the claimant’s poor conduct – in this example, a fireman seizing and throwing an obstructive bystander’s phone. The case demonstrates how contributory conduct can significantly limit financial exposure even where employers fall short procedurally.
