Employee who accidentally sent an offensive email to a client unfairly dismissed

A tribunal judge has ruled that a curtain company’s disciplinary process was a “sham” with a pre-determined outcome to appease an unhappy customer who had threatened to post a negative review and publicise an offensive message on social media. In the case, Ms Jones, an administrator at Vale Curtains in Oxford, had accidently replied to a customer’s complaint email by calling him a “tw*t.”

The client had repeatedly complained about his order and had requested a full refund for the cost of his curtains. Ms Jones felt the client had previously been rude to her during earlier phone conversations. She intended to forward the email to the Installations Manager with her comment “Hi Karl – Can you change this... he’s a twat so it doesn’t matter if you can’t.” But the email was sent to the client instead.

Upon reading the email the client immediately called Ms Jones to ask why they had been called the term. Ms Jones apologised profusely and immediately informed her manager, Ms Smith, what had happened. Ms Smith called the client to further apologise and said Ms Jones would be “reprimanded” and that the matter would be fully investigated. The client threatened to report the incident to the press and on social media.

Ms Smith reported to the tribunal that an investigation then took place. This consisted of the Installations Manager looking at the email that Ms Jones had sent the customer and deciding that due to the seriousness of the misconduct and the risk of serious reputational damage a disciplinary hearing was needed. However, no witnesses were interviewed nor was an investigation report or evidence collated.

In the background the client directly contacted the Managing Director and threatened to report the incident on Trustpilot alongside a negative review of the company. Upon hearing about the issues, the former Managing Director (who was still involved in the business) told Ms Smith that she should “get rid of” Ms Jones. The tribunal judge found that this statement constituted the decision to dismiss the employee.

At the subsequent disciplinary hearing Ms Jones was dismissed. The following day Ms Smith emailed the client to inform them that Ms Jones had been dismissed “following the disgraceful email” which they had received in error. The tribunal judge regarded this communication as an attempt to persuade the customer not to publicise the incident further.

The judge said the principal reason for the dismissal was the customer’s threat to publicise Ms Jones email to the press, social media and Trustpilot. The tribunal found the decision to dismiss “fell well outside the range of responses open to a reasonable employer” and “the disciplinary process and the dismissal were a sham designed to placate the customer.” Ms Smith’s immediate communication to the client confirming the dismissal was seen as further evidence of this plus the content of the call showed a disregard for Ms Jones’ data protection rights.

The judge found the employer had been unreasonable in failing to consider other more proportionate ways to prevent the negative publicity that might have occurred had the original email been publicised. The judge criticised the lack of adequate investigation, a failure to follow a fair procedure and the lack of reasonable grounds to believe Ms Jones was guilty of misconduct. The decision was found to be a foregone conclusion but had a fair procedure been followed there was little chance that the employee would have been dismissed.

The judge awarded £5,484.74 which included a 10% reduction for contributory fault.

Learning for employers

This case highlights key learning points for employers:

• Follow a fair process

• Conduct a reasonable investigation even where allegation/s appear straightforward, or the employee has admitted to them

• Interview the alleged perpetrator and other relevant witnesses

  Inform the employee of the allegations and outline the specific breaches of conduct or misconduct to ensure they fully understand them

• Have an independent person handle each stage of the process (i.e. the investigation, the disciplinary hearing and the appeal)

• Ensure that the disciplinary decision maker is genuinely the one making the final decision

• Adhere to your company disciplinary policy and comply with the ACAS code of practice

• Do not pre-determine the outcome of a disciplinary process as this risks a successful claim of unfair dismissal even in cases involving serious misconduct