This case centred on social media posts made by an employee. The Employment Appeal Tribunal (EAT) overturned the original Employment Tribunal (ET) decision on remedy and remitted it back to the ET for further consideration on two key issues: the assessment of contributory conduct and the order for reinstatement. The EAT held that the employment tribunal erred in its approach when assessing contributory conduct. It also held that the employment tribunal misapplied the test for reinstatement focusing on its own view of practicability rather than whether the employer genuinely and rationally believed that trust and confidence had broken down.
Facts
The claimant, Mr Ignatowicz, was employed as a warehouse employee for DHL Services Limited from March 2017. In April 2023, he unsuccessfully applied for an internal administrative role. Following that process, he raised a grievance about the recruitment process. On 6 June 2023, the claimant posted that grievance on his Facebook account along with additional commentary that "capitalist dictatorship is evil and has to be destroyed". A further Facebook post followed on 9 June 2023 which referred to the interviewing manager having a similar surname to a controversial historical leader Chmielnicki (who was responsible for massacres of Jewish and Polish people) and asking for his "enemies to be destroyed".
On 15 July 2023, Mr Ignatowicz posted on Facebook stabbing his "voodoo doll" and concluding with a message to "and all of my other enemies" that they had "diged (sic) the graves for you (sic) own children"
Mr Ignatowicz was dismissed for gross misconduct on 31 July 2023 for the 6 June 2023 post although the ET held the 9 June 2023 post had influenced the decision. Mr Ignatowicz appealed his dismissal on 2 August 2023. He then posted his appeal on Facebook which included remarks that the hearing manager who made the decision was "either incompetent or with not fully good mental health". The appeal was dismissed on 15 August 2023.
The ET originally concluded that the dismissal was unfair, largely due to the employer's failure to establish that Mr Ignatowicz was aware or had training on the social media policy, and that it did not ask Mr Ignatowicz to take the 6 June post down. The ET reduced the compensatory award by 10% for contributory conduct. That conduct they took into account was solely that the claimant had chosen to publicise his grievance. The ET ordered reinstatement, finding that relationships could be repaired.
Mr Ignatowicz's additional claims of discrimination on the grounds of sex and philosophical belief and victimisation were not upheld.
EAT decision
Contributory Conduct
In considering contributory conduct, the EAT held that the required approach differs between the basic and compensatory awards. To be taken into account for the basic award, the conduct must have occurred before the dismissal or notice of it. Conduct between the dismissal and the appeal cannot be considered. For the compensatory award, conduct prior to the appeal can be taken into account if it caused or contributed to the dismissal.
In light of this approach, the EAT held the ET had erred by limiting its analysis to the act of posting the grievance online.
Reinstatement
In relation to reinstatement, the EAT held the ET misapplied the test for reinstatement focusing on its own view of practicability rather than whether the employer genuinely and rationally believed that trust and confidence had broken down. The ET had failed to take into account various matters, including conduct including a comparison between managers at the employer and Nazis during the litigation. It was incumbent on the ET to consider how the staff of the employer had been affected by the posts from 6 and 9 June, July and August and the claimant's conduct during the litigation. Also, the ET had incorrectly considered contributory conduct when it was deciding whether reinstatement was practicable. The correct test was whether, having regard to his contribution to his dismissal, the tribunal considered it would be just to order Mr Ignatowicz's reinstatement rather than merely practicable.
Both issues have been remitted to the same tribunal for redetermination. The EAT also expressed that the ET should consider the qualified Convention right to freedom of expression under Article 10 European Convention of Human Rights, as it could be potentially relevant to the interpretation of the provisions dealing with contribution and reinstatement.
What does this mean for employers?
The judgment provides important clarification on how tribunals must approach contributory fault and reinstatement, particularly in social media cases.
The case is useful clarification of the need to approach contributory conduct deductions differently in relation to the basic and compensatory awards. It is likely to be particularly helpful for employers where conduct continues after the dismissal which is considered at appeal stage.
This case also is helpful in that it emphasises that where the claimant is seeking reinstatement or re-engagement, whether the employee caused or contributed to the dismissal will be relevant to whether it would be just to make an order of reinstatement (or re-engagement).
