By Rachel Ellis, Partner & Employment Rights Regional Manager
Case Judgment Summary:
In this case of unfair dismissal in relation to an employee who posted about his grievance against his employer on Facebook, the EAT clarified the approach that tribunals should take when considering deductions to compensation for contributory conduct and reinstatement.
Background
Mr Ignatowicz was employed by DHL Services Limited as a warehouse operative. During his employment he applied unsuccessfully for an internal administrative role and subsequently raised a grievance about the recruitment process.
Shortly afterwards, he published the contents of his grievance on Facebook, alongside additional comments criticising “capitalist dictatorship” and referring to the destruction of his “enemies”. He later made further posts which, while not naming the employer directly, were linked by colleagues to the workplace and caused concern.
The employer commenced a disciplinary process, relying primarily on the initial Facebook post. Mr Ignatowicz was summarily dismissed for misconduct, on the basis that the posts were derogatory and risked damaging the company’s reputation and workplace environment.
Mr Ignatowicz brought claims including unfair dismissal.
Employment tribunal decision:
The Tribunal held that he had been unfairly dismissed. They found that the decision to dismiss was outside of the range of reasonable responses. In particular, they found that:
- The claimant had not been provided with, or trained on, the relevant social media policy;
- There was no clear evidence that breach of such a policy amounted to gross misconduct;
- The employer failed to ask the claimant to remove the post before proceeding to dismissal;
- There was little evidence of any actual reputational or operational damage caused by the posts; and
- Mitigating factors, including the claimant’s apology, clean record and personal circumstances, were not properly considered.
The tribunal reduced the Claimant’s compensation by 10% for contributory conduct. They also ordered that the Respondent reinstate the Claimant. They held that reinstatement was both practicable and just, given the absence of a breakdown in trust and confidence and the employer’s size. The Respondent appealed.
What the EAT decided
The Employment Appeal Tribunal allowed the appeal on remedy and sent the case back to the Tribunal for reconsideration.
It held that:
- The Tribunal erred in its assessment of contributory conduct by focusing too narrowly on the act of posting the grievance and failing to consider the full range of posts, including later material that may have contributed to the dismissal;
- In assessing compensation, the Tribunal should have distinguished between the legal tests for reducing the basic award and the compensatory award, particularly in relation to whether conduct caused or contributed to dismissal;
- The Tribunal also erred in its approach to reinstatement by failing properly to consider whether the employer genuinely and rationally believed that trust and confidence had broken down, including in light of the claimant’s conduct during litigation;
- The correct test is not whether reinstatement appears workable to the Tribunal, but whether it is practicable and just in light of the employer’s position and the employee’s contribution to dismissal.
As a result, both the issue of contribution and the question of reinstatement were remitted to the same Tribunal.
Comment
This decision highlights the continuing challenges around social media use and dismissal in the workplace and the importance of process and proportionality in unfair dismissal considerations in these cases.
The judgment also provides important clarification on remedy. It reinforces that even where dismissal is unfair, publicly posting grievances, particularly in inflammatory terms, is likely to be treated as blameworthy conduct. Further, it highlighted that subsequent conduct, including during appeals and litigation, can be highly relevant when assessing compensation and remedies. It underlines that Tribunals must take a structured and legally precise approach to contributory conduct and reinstatement, particularly where ongoing conduct raises questions about trust and confidence in respect of reinstatement.
