Following a decision by Catalunya’s Superior Court of Justice earlier in the year, it seems that serious verbal abuse of a more senior colleague may not always be a ground for dismissal.
The case concerned a manager who telephoned a subordínate to seek some information on a work-related matter. After five minutes, the employee concerned hung up. The manager then went to demand the information in person. The discussion descended into an argument about pay during which the employee lost his temper and called his manager “a son of a bitch” and a “swine”. Unsurprisingly, he was dismissed and, after losing his first court challenge, took his claim to the Superior Court.
Articles 54 and 58 of Spain’s Workers’ Statute provide for disciplinary dismissals on the grounds of verbal abuse of an employee, and the relevant Collective Wages Agreement also provided that “verbal or physical offences against the employer, fellow workers or family members that live with them will be considered very serious offences.” The sanctions for this type of offence are: “Suspension without pay of between 15 and 30 days or dismissal in accordance with the law, in either case without prejudice to any other measures taken against the employee”.
Under Spanish law, the employer can choose the appropriate sanction – provided that it is one within the law.
Spanish case law has established that for verbal abuse to result in the dismissal of an employee, the offence must be: (i) serious; (ii) unjustified; and, (iii) the “victim” employee must be affected by the abuse. Other matters that should be taken into account are: (i) any relevant terms in the employee’s contract; (ii) the objective of such terms; (iii) the employee’s level of education (i.e. whether he is more or less educated then the abused person); (iv) his professional and academic qualifications; and (v) the place and time of the incident.
It is also essential for the courts to consider whether the dismissal was a proportionate response to the offence.
Taking all of the above into account, and considering the employee’s length of service (he had worked there since 1999) and his level of professional qualifications, the Supreme Court held that offence was not sufficiently serious to justify dismissal. Indeed, in her judgment, the Judge said “The social degradation of language has caused the expressions used by plaintiff to become commonly used in certain settings, especially in arguments”. Instead it ruled that the employee should be re-instated or receive compensation of €6,500.
Although the decision is on its face surprising, it is likely that an English Employment Tribunal would take similar considerations into account. One must question whether bad language in the workplace, especially to a superior, is or should be legitimised by repetition (the “degradation of language”) but in England the Tribunal would have had to apply the “range of reasonable responses” test and it is hard to imagine that it would have found dismissal in those circumstances to fall outside that range.
This may not be the end of the matter, however, as the employer can appeal against the judgment to the Supreme Court.