When offensive language isn’t enough to justify dismissal: Insights from recent tribunal cases

Over recent months, Employment Tribunals have addressed the question: is using offensive language towards a superior always grounds for dismissal?

Two key cases highlight the importance of context, proportionality, and procedural fairness when considering disciplinary action:

1. Kerrie Herbert v Main Group Services

Although this case was decided in 2023, it has recently received renewed media attention in 2025 following the publication of the full tribunal ruling and details of the compensation awarded, including legal costs.

Kerrie Herbert, an office manager at a scaffolding and brickwork company, was dismissed after calling her brother-in-law (operations manager) and sister-in-law (managing director) "dickheads" during a heated meeting. The Employment Tribunal ruled that while the language was inappropriate, it did not constitute gross misconduct justifying immediate dismissal.

Key factors influencing the tribunal’s decision included:

• The incident was isolated, with no prior history of similar behaviour.
• No prior warnings had been issued for misconduct.
• The employer failed to follow its own disciplinary procedures before dismissal.

Herbert was awarded nearly £30,000 in compensation and legal costs.

2. Davies v Oscar Mayer (October 2025)

In October 2025, Karl Davies was found to have been unfairly dismissed by an Employment Tribunal for greeting his red-headed manager using a mock Irish accent. The tribunal found that while the behaviour was irritating and mocking, there was no evidence of racial harassment. The investigation was criticised for being biased and flawed, especially since it was conducted by a manager with whom Davies had an unresolved grievance. The tribunal emphasised that the dismissal was unfair, highlighting the severity of the racial harassment accusations and the need for a fair and thorough investigation.

Davies was awarded £16,000 in compensation, emphasising the need for impartiality in workplace investigations and proportionate disciplinary responses.

Key Takeaways for Employers

These cases serve as an important reminder of several key principles for employers:

• Context matters: Always consider the circumstances and intent behind any offensive language or conduct.
• Proportionality: Dismissal should be a last resort, particularly in cases of first-time or isolated incidents.
• Procedural fairness: Follow fair, consistent, and thorough disciplinary procedures to minimise the risk of unfair dismissal claims.
• Avoiding bias: Ensure investigations are impartial and conducted by individuals without conflicts of interest.

Employers are encouraged to review their disciplinary policies to ensure they align with these principles and to train managers in handling such situations appropriately. For expert legal guidance on disciplinary procedures and dismissals, contact our Employment team.