Call: Employee did not realise he was being recorded
A will-writing business was entitled to fire a member of staff who accidentally left a message on a potential client’s voicemail about getting drunk and littered with swear words, a tribunal has ruled.
Employment Judge Clark found that Legacy Wills has a strong focus on demonstrating its professionalism and enforced strict rules to achieve this.
The Leicester-based company is an unregulated business providing will writing, lasting powers of attorney and estate planning services. It uses telemarketing, at which the claimant – named as Mr L Attwal – was one of the top performers.
In March 2018, the company received a complaint stating: “I am not sure why your adviser has left me a voice message of a conversation he was having with another colleague about getting drunk and using swear words. Thinking of putting it on the internet. Very unprofessional!”
The tribunal found that when Mr Attwal called the potential client, he did not realise the call had connected to voicemail.
“What then happened was that Mr Attwal began a discussion with a colleague, Dean, in the course of which Mr Attwal made reference to a local pub, that there was a ‘pound-a-pint’ night, the cost of alcohol generally and began reminiscing on various stories about getting drunk.
“The conversation was punctuated with the words ‘fuck’ or ‘fucking’ and reference to the beer being ‘crap’.”
Despite efforts to “smooth the feathers” of the customer, their potential business was lost.
Mr Attwal initially argued that he had done nothing wrong, but at later meetings described what happened as a genuine mistake and that he was devastated by it. He was summarily dismissed for gross misconduct after a disciplinary hearing, upheld on appeal.
The tribunal found that the director who dismissed him “was at pains to build a business in this sector which acted appropriately, ethically and professionally”.
It went on: “We accept that his stated aims to do so were more than him paying lip service for our purposes. This was a genuine desire on his part to improve the reputation of his business in this sector…
“The broader objective of creating a business that demonstrates professionalism and a positive public reputation seems to us to be a forceful objective for setting in place the measures that we find [he] did put in place.”
This included training that highlighted inappropriate conduct – with leaving a message for a client containing swearing given as a specific example because it had happened many years before, also leading to dismissal – and making clear that such behaviour would not be tolerated.
There were, the judge observed, “fewer stronger examples of an employer’s genuine desire to enforce a standard than when a particularly valuable worker such as Mr Attwal falls foul of the rules, but the rules stand and have to be enforced, albeit with regret”.
The tribunal rejected Mr Attwal’s argument that the dismissal was connected with his dyslexia or diabetes, saying there was no evidence they played any part in the decision.
The main challenge was whether the sanction of dismissal fell within the range of reasonable responses of a reasonable employer, and Judge Clark said that, taken in isolation, a mistake like this, made during a loss of concentration, would not.
“However, it is not to be viewed in such isolation… We have considered what steps were taken in this particular employer and in this particular setting to spell out to its employees that if they do use this sort of language, and particularly if it comes to the ears of their customers, what the consequences will be.
“It is only because we have found as a fact the various steps that this employer has taken over recent years to set those foundations amongst its workforce that we have come to the conclusion that the response of dismissal does fall within the range of reasonable responses.”
Judge Clark stressed that the tribunal’s task was “not to import a view about what we would have done nor is it correct to ask whether a lesser sanction was reasonable”.
Dismissal did not fall outside the range of reasonable responses of a reasonable employer and so the decision was fair and the claim dismissed.
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