When is swearing at your boss not a sackable offence?

September 16, 2025

When is swearing at your boss not a sackable offence?

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By Nicole Brendel

Read time: 4 minutes

A Claimant in a recent Employment Tribunal case was awarded nearly £30,000 after being found to have been unfairly dismissed for referring to her managers as “dickheads”.

Our employment law expert, Nicole, explains the Tribunal decision highlighting the importance of context when dealing with workplace misconduct.

What happened in the case?

In the case of Herbert v Main Group Services Ltd, Ms Herbert was employed as Office Manager at a scaffolding and brickwork company, Main Group Services Ltd. She was managed by husband and wife, Mr and Mrs Swannell. Ms Herbert discovered that the company was considering making her redundant and therefore challenged Mr Swannell about her discovery.

Mr Swannell informed Ms Herbert that he was not happy with her management of the office and criticised the way she did certain things. In response, Ms Herbert told Mr Swannell that a number of those responsibilities did not form part of her job role. She told Mr Swannell “It’s only because of you two dickheads that I stayed”, referring to Mr and Mrs Swannell. Ms Herbert claimed this comment was a joke and was in keeping with the way she and Mr Swannell would normally communicate with each other.

Mr Swannell told Ms Herbet “That’s it, you’re sacked, pack your kit and f*** off”. Ms Herbert asked Mr Swannell to confirm whether he had terminated her employment with the Respondent to which Mr Swannell confirmed “Yes I have, now f*** off”.

The dismissal and Tribunal findings

Ms Herbert then received a letter from the company informing her she was suspended from work and an investigation would be undertaken. The business orchestrated a disciplinary investigation process and claimed to dismiss Ms Herbert as a result.

Ms Herbert pursued an Employment Tribunal claim for unfair dismissal. The Employment Tribunal found that:

• The above phrases used by Mr Swannell were clear and unequivocal words of dismissal;
• The retrospective attempt to carry out an investigation and disciplinary process was a sham;
• Ms Herbert’s comments about her bosses did not amount to gross misconduct warranting immediate dismissal, particularly given the informal nature of the meeting, Ms Herbert’s long service with the company and her clean disciplinary record.

Ms Herbert was therefore found to have been unfairly dismissed and awarded nearly £30,000 as compensation for loss of earnings and legal costs (which is rare in the Employment Tribunal).

Is swearing and abusive language misconduct?

The language of an employee should be viewed by an employer in context rather than in isolation and whatever was said should be considered in all the circumstances. Factors such as workplace culture, heat of the moment outbursts or damage to the employer’s reputation are relevant when deciding whether dismissal for swearing is fair.

Where did the employer go wrong?

Misconduct is a potentially fair reason for dismissing an employee. In deciding whether a dismissal for misconduct is fair, a Tribunal will look at whether it was reasonable for the employer to dismiss in the circumstances. Fairness is divided into two parts:

• Substantive fairness: was it reasonable for the misconduct to be treated as a sufficient reason for dismissal?
• Procedural fairness: did the employer follow a fair procedure?

Holding a reasonable investigation and a fair disciplinary hearing are both key parts of the test of fairness. It’s an important principle that the employee is given a fair chance to understand to the allegation and fully respond to it before any decision to dismiss them is made.

In this case, Main Group Services Ltd failed to inform Ms Herbert of the allegation of misconduct, carry out any investigation, or follow any disciplinary process before dismissing her.

What steps should employers take to avoid unfair dismissal claims?

• This case has demonstrated the importance of having current, up-to-date disciplinary policy and procedures and following them when disciplining staff for misconduct.
• When an employee’s conduct falls below the standard expected by them, employers should refer to its policy and procedure and conduct a disciplinary investigation before deciding whether formal disciplinary action is required.
• Communicate with the employee so they are aware of the allegation against them, the risk of dismissal, and their rights in relation to the process.
• Utilise warnings in instances of less serious forms of misconduct. The dismissal of an employee for a first offence is likely to be unfair if they have not previously received any warnings, unless the conduct is very serious.
• Seek legal advice at an early opportunity to avoid the risk of costly Tribunal proceedings.

We will be covering this topic further in a free upcoming 45-minute webinar: Fire with Caution: Navigating High-Risk Dismissals (11am on 26 November 2025). This webinar forms part of our wider free Autumn webinar series: Employment Law Unpacked. More information here.

We will also be holding a Mock Disciplinary Hearing training session for employers in North Wales on Tuesday 21 October 2025. This session will give managers, leaders and HR practitioners a chance to get our top tips on carrying out a fair disciplinary hearing and see a disciplinary hearing, delivered by our expert employment solicitors and HR consultants. Limited spaces available. Book your place now, here.