The EAT recently reiterated the importance of a well worded warning in JJ Food Service Limited v Kefil, providing a clear and rather depressing reminder of the importance of not taking for granted the knowledge of management in disciplinary proceedings.
Mr Kefil was described as overly authoritarian manager who relied on bullying and intimidating behaviour. It was accepted by the Tribunal that any constructive dismissal claim by one of his long- suffering employees would have been difficult to defend, and that they had been subjected to bullying, unlawful discrimination, harassment and threatening behaviour. Even violence was alluded to. His behaviour was so bad that his workers collectively signed a letter of complaint against him. His employer warned him about this, making it clear that his behaviour was unacceptable. He did not respond as hoped for to this warning (or at all, really) and was dismissed.
The Employment Tribunal found that dismissal, despite the incontrovertible awfulness of his conduct, to be unfair. It took the view that although Mr Kefil had had a shot across the bows in relation to his management style, JJ Food Service was at fault because it had not told him in terms that a continuation of his behaviour would lead to his dismissal. That meant that at the vital moment, termination fell outside the range of reasonable responses, so making it unfair.
The employer claimed that a man in Mr Kefil’s position should have known full well that his behaviour was unacceptable and that the warning he was given was sufficient, that he ought to have known that if he continued he would be dismissed. The EAT was sympathetic but not wholly convinced. Mr Kefil had not been trained to manage and therefore could not be expected to know that he could be dismissed, even though he had been warned formally and informally about his behaviour several times and had been a manager for a number of years. This was clearly a case that the EAT, left to its own devices, would have decided the other way. But its powers are limited to correcting errors of law, and although the Tribunal’s decision was rather odd, it was not so inexplicable as to become perverse and therefore appealable.
So the lesson to be learned? It would be hoped that managers don’t need to be taught that it is unacceptable to threaten their workers, bully them and subject them to intimidating behaviour, but had this been the case for the employer here, the result could have been very different. So warnings should be clear, in writing and set out the consequences of a failure to heed them. It is a sad day when people who have been managers for years can still claim that they are entitled to continue objectively unacceptable behaviours until told that they are for the high jump if they do, but that is the conclusion here. It is also a sad day when a Tribunal holds against an employer its failure to train a manager formally that bullying, harassment, threats and discrimination are not best practice. Come on, really?