M Austin v A1M Retro Classics Ltd

Ben McCarthy

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31 Mar 2021

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The Employment Tribunal (ET) has ruled that a claimant was unfairly dismissed after posting his frustrations with his employer on social media.

In this case, the ET examined the laws contained within section 10 of the Employment Relations Act 1999 as well as section 98 of the Employment Rights Act 1996. Section 10 of the 1999 Act creates a right for staff to be accompanied to a grievance and/or disciplinary hearing. Section 98 of the 1996 Act provides that employers can avoid a claim for unfair dismissal if they have:

  • a potentially fair reason to dismiss
  • acted reasonably in treating this reason as sufficient to justify dismissal

Employers must also investigate the issue and follow a fair disciplinary procedure. All disciplinary procedures should be in writing. They should set out the possible sanctions for misconduct and/or poor performance. You should also set out the procedures which you’ll adopt in reaching a conclusion as to which sanction will be appropriate. Usually this will be a series of warnings and/or dismissal. However, it may include other disciplinary sanctions, including demotion.

Social media & unfair dismissal

Facts

The claimant in this case was employed by the respondent as a paint sprayer. On 13 February 2020, both parties entered into an argument about the claimant’s poor workmanship. This resulted in the respondent becoming agitated and shouting at the claimant.

After the claimant returned home that day, he turned to Facebook to vent his frustrations about the argument. One of the posts read:

“I don’t think I’m a bad person but I don’t think I have ever felt so low in my life after my boss’s comments today.”

The post garnered a number of responses from people who attempted to reassure the claimant. Some of these comments were inappropriate and included personal verbal attacks towards the respondent – including homophobic comments.

Some days later, on 17 February 2020, the claimant was called into a disciplinary hearing without any real prior notice. The respondent’s disciplinary policy wasn’t followed. The claimant was dismissed via telephone the next day and later made a claim to the ET for unfair dismissal. The claimant argued that he was not given the opportunity to be accompanied at the hearing.

ET

The ET upheld his claim because the respondent had failed to carry out a proper investigation of the incident. The employer also failed to give the claimant any prior notice of the disciplinary hearing.

With regards to the former, the respondent attempted to rely on their social media policy. This stated that employees should only make posts on their personal social media accounts. It also stated that they shouldn’t make comments which would ruin the reputation of the organisation and those in charge of it. To this the ET expressed that the respondent should have investigated whether the claimant’s occupations and place of work were identifiable on his Facebook page before calling a disciplinary hearing. The ET went on to say the a “reasonable” employer would have not only done this but also checked the privacy settings of the post and the size of the group who interacted with it. This was largely due to the social media policy highlighting the need for “appropriate privacy settings” on employee posts.

The ET’s explanation of its decision to hold that it was satisfied that the claimant had not been given enough notice of the disciplinary hearing relates to the claimant’s blatant unpreparedness for the hearing. He hadn’t been given any information of what was being alleged against him. Thus, he could not prepare a defence. In all, it was clear that the respondent had not followed a fair procedure before concluding that a dismissal was reasonable. 

The ET upheld the claim of unfair dismissal. However, it disagreed that the claimant had not been given the opportunity to be accompanied to the disciplinary hearing. The ET found that there was no evidence to show that the claimant had requested to be represented by a trade union or a colleague.

Note for employers

The respondent’s shortfalls in this case may seem difficult to make. However, it can sometimes be easy for organisations to forego crucial disciplinary rules before coming to a decision to dismiss an employee. This is especially true for small businesses or employers who feel personally attacked.

This case therefore highlights the significance of following a fair procedure regardless of the circumstances of the misconduct. Organisations must also be able to interpret their own policies and apply them correctly to a given situation. A fair procedure is essential, but so is review your policies. You should ensure they’re up-to-date and understood by both managers and all other members of staff.

Expert support

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About the Author

Ben McCarthy works as a content writer for Croner producing commentary and guidance on employment law and key HR developments. Coming from an extensive legal background, Ben regularly constructs key training materials for clients and advisers, and provides daily contributions to national publications.

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