Social media posts, contributory conduct and reinstatement: EAT orders reconsideration of remedy

Background

In the case of DHL Services Ltd v Ignatowicz, the claimant worked as a warehouse colleague. After being unsuccessful in an application for an administrative role, he raised a grievance about the recruitment process.

While the grievance was ongoing, the claimant published the grievance on Facebook and added comments criticising capitalism and the employer's decision-making process. He later made further Facebook posts which referred to colleagues and managers in a way that caused concern within the workplace.

The employer investigated the posts and dismissed the claimant for gross misconduct. The Tribunal found the dismissal to be unfair. It concluded, among other things, that the claimant had not been trained on the employer's social media policy, there was insufficient evidence that he had received the relevant policy, and there was no evidence that the posts had attracted the attention of the wider public or had a detrimental impact on DHL.

When considering remedy, the Tribunal ordered that the claimant should be reinstated in his role, but reduced his compensation by 10% for contributory conduct. 

The employer appealed, arguing that the Tribunal had adopted an unduly narrow approach to contributory conduct and had erred in ordering reinstatement.

EAT decision

The EAT upheld the appeal on the remedy issues.
On contributory conduct, the EAT held that the Tribunal's analysis was too limited. It had focused largely on the claimant's decision to publish his grievance on Facebook and had failed properly to consider the significance of the accompanying comments and subsequent social media activity.

The EAT also clarified that, while conduct relied upon to reduce a basic award must occur before dismissal, post-dismissal conduct may still be relevant to a compensatory award if it was taken into account during an internal appeal and contributed to the decision to uphold the dismissal. The issue of contributory conduct was therefore remitted for reconsideration.

The EAT also confirmed that, when considering whether reinstatement is practicable, a Tribunal may need to take account of conduct occurring after dismissal, including conduct during the litigation itself, insofar as it is relevant to whether the employer genuinely and rationally believes it can no longer have confidence in the employee.

The EAT also held that the Tribunal had erred when ordering reinstatement. The correct question was not whether the Tribunal itself considered the employment relationship repairable, but whether the employer genuinely and rationally believed that it could no longer have confidence in the employee and whether reinstatement was therefore practicable.

The Tribunal had failed adequately to consider the effect of the claimant's ongoing conduct, including comments made after dismissal and during the litigation. The issue of reinstatement was therefore also remitted for reconsideration.

Learning points

This decision provides useful guidance on contributory conduct in unfair dismissal cases. Tribunals must assess all potentially blameworthy conduct and apply the correct statutory test when considering reductions to compensation.

The decision also confirms that conduct occurring after dismissal may still be relevant where it influences the outcome of an internal appeal. Employers should therefore ensure that appeal decisions clearly identify any conduct that is being taken into account.

The case further highlights the importance of evidence when resisting reinstatement. Employers seeking to argue that reinstatement is not practicable will need to demonstrate a genuine and rational basis for any claimed breakdown in trust and confidence.

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For more information please contact Matt Verrier in our Employment team.