‘Blunt’ communication and unfair dismissal

In Mr B Sobnack v Loughborough University, the employment tribunal (ET) considered whether the employee had been unfairly dismissed by his employer for his ‘blunt’ communication style, following complaints from sub-wardens at the university.

Background

Mr Sobnack is employed by the university as a university teacher in physics. Between 1 December 2002 and 27 March 2020, Mr Sobnack was also a warden at one of the halls of residence at the university. Mr Sobnack had separate employment contracts for these two roles and claimed that he was unfairly dismissed from his role as warden.

The first complaint against Mr Sobnack, made in 2018 by one of the sub-wardens, was that Mr Sobnack had said to him that leaving his role as a sub-warden ‘was the best thing to happen to the hall’. Further complaints were made by another sub-warden in 2019, which included an aggressive text message stating "why don’t you listen?????? Stick to what has been decided!" and a message sent to a WhatsApp group chat directed at this sub-warden, saying "I am really unhappy and extremely disappointed!"

Following the complaints by the second complainant, a formal investigation was carried out by the head of legal services. In her summary, she concluded that she had ‘not been able to identify sufficient evidence to support an allegation of bullying and harassment’. This report was sent to Mr Sobnack’s line manager, Dr Alonso, who met with Mr Sobnack to discuss some of the aspects of the findings informally. This was followed up by a letter to Mr Sobnack, where Dr Alonso wrote:

‘I noted there was an issue with tone in one of your communications which you yourself accepted. I ask you to reflect on this for future such instances and adopt a different tone.’

In October 2019, a third complaint was made by another sub-warden. This sub-warden claimed that Mr Sobnack’s ‘behaviour and communication style was aggressive and confrontational’. She also alleged that Mr Sobnack asked her to work in excess of 20 hours per week, which would have contravened the terms of her visa. He allegedly told her not to record extra hours on her time sheet.

Dr Alonso felt that the complaints indicated unprofessional behaviour by Mr Sobnack and that, because of the number of allegations, he no longer had trust and confidence in Mr Sobnack. Dr Alonso consulted HR on dismissing Mr Sobnack and they advised him that he only needed to give one term’s notice to terminate Mr Sobnack’s appointment as warden.

Dr Alonso arranged a meeting with Mr Sobnack in November 2020. Mr Sobnack was accompanied by his trade union representative. Mr Sobnack prepared a note of the meeting after it had taken place, but the University did not. The notes record that Mr Sobnack’s representative raised several times queries about the fairness of the process that Dr Alonso was following and also queried that there was no proposal to investigate the complaints made by the third sub-warden.

Following this meeting, Dr Alonso wrote to Mr Sobnack giving him a term’s notice. Mr Sobnack was given no right to appeal. This was done on the advice of an HR partner in the University.

The ET considered that the university had established a fair reason for dismissal, namely some other substantial reason being a breakdown in trust and confidence. However, the ET found that the dismissal was not fair, as a reasonable employer would have reflected that:

• The complaints made by the first two sub-wardens were found not to be proven.
• The allegations made by the third sub-warden were not investigated.
• The previous allegations had not resulted in any disciplinary process or sanction.
• Mr Sobnack had been a warden since 2002 and there had been no complaints before 2019.
• The contract of wardenship prescribed a process for dealing with disciplinary matters.

Summary

Employers should always ensure that they follow a fair disciplinary process, which includes investigating and establishing the facts. A reasonable employer should not go into a meeting with a closed mind and pre-determined outcome that they are going to dismiss the employee. In addition, employees should be given the right to appeal. In addition, an employer should reflect on a lack of previous disciplinary action for apparently similar matters. Therefore, in this particular case, the third complaint should have been considered the first formal determination of misconduct and the employer should have reflected on the long service, the contractual disciplinary policy, the lack of a previous sanction and should have imposed a sanction other than dismissal.