Workplace Communication: When Emotions and Words Collide
In the high-pressure environment of modern workplaces, how we express frustration can sometimes lead to unexpected consequences. This was certainly the case for Kerrie Herbert, a supervisor at UK-based scaffolding and brickwork company Main Group Services, who found herself at the center of a workplace dismissal case that would ultimately cost her employer over $40,000. Herbert’s story provides a fascinating glimpse into the complexities of workplace communication, disciplinary procedures, and the legal boundaries of what constitutes fair dismissal.
Herbert had been a loyal employee since 2018, working alongside her brother-in-law Thomas Swannell (operations manager) and sister-in-law Anna Swannell (managing director) at the Northampton-based company. Her responsibilities were substantial – supervising office operations, managing payroll, arranging meetings, and filling in for administrators when needed. Her annual salary of over $50,000 reflected the importance of her position. However, her employment situation took a dramatic turn in May 2022 when, while searching through a manager’s drawer for administrative purposes, she discovered documents related to the cost of employing her. This discovery left Herbert feeling vulnerable and concerned about her job security, believing these documents might indicate plans to terminate her employment.
The situation escalated when Herbert was called to a meeting where Thomas Swannell criticized her performance, claiming suppliers weren’t being paid on time and citing other operational problems. The emotional weight of this criticism, combined with her previous discovery, proved too much for Herbert, who began to cry during the meeting. In a moment of emotional distress, she made the fateful comment that would lead to her dismissal: “If it was anyone else in this position, they would have walked years ago due to the goings on in the office, but it is only because of you two d–kheads that I stayed.” Thomas Swannell’s response was immediate and equally heated, telling her she was fired and ordering her to leave. When Herbert sought clarification about whether she was actually being dismissed, he confirmed this was indeed the case.
The case eventually made its way to an employment tribunal, where Judge Sonia Boyes was tasked with determining whether Herbert’s dismissal was justified. While the company claimed poor performance as the reason for termination, the judge found that Herbert had actually been fired “in the heat of the moment” because of her comments during that fateful meeting. A critical factor in the judge’s decision was Herbert’s employment contract, which specified that while “provocative use of insulting or abusive language” could be grounds for dismissal, a warning should be issued first. Only serious violations involving “threatening and intimidating language” would warrant immediate termination. Judge Boyes determined that Herbert’s comment, while “inappropriate and regrettable,” did not rise to the level of seriousness that would justify summary dismissal without warning.
What makes this case particularly significant is that the judge considered the context surrounding Herbert’s outburst. The court noted that this was a “one-off” incident from an employee with “no history of insolence or offensive comments.” Furthermore, the company had failed to follow its own disciplinary procedures – Herbert was neither given proper notice of termination nor paid in lieu of that notice. As Judge Boyes concluded, “the conduct when considered in context was not so serious as to amount to a repudiatory breach of contract.” This ruling highlights the importance of proportionality in workplace discipline and the need for employers to follow established procedures, even when emotions are running high.
This case bears similarities to a 2020 incident in New Jersey, where a white employee was reinstated after being fired for inappropriate language during a Zoom call. In that situation, the employee claimed to have been singing along to a rap song, believing he was muted. Following a legal challenge from the employee’s union, the court ordered the company to give him his job back, ruling that the “one-time utterance” was not directed at anyone specific and occurred accidentally. The court deemed it “precisely ‘the sort of offhanded comment and isolated incident’ that falls short of harassment.” Both cases remind us that workplace discipline exists within legal frameworks that require careful consideration of context, intent, and proportionality. For employers, these cases serve as costly reminders that even when employee behavior crosses lines of professionalism, responses must be measured, procedurally sound, and proportionate to the offense.
