Long serving employee was unfairly dismissed for complaining about his boss on Facebook – Tribunal rules

By February 9, 2021Uncategorized

A paint sprayer, Michael Austin, who had worked for his employer for 5 years before being dismissed was involved in an “extremely heated discussion” with his boss about the Company’s alleged poor work.

That evening Austin wrote on Facebook “I don’t think I’m a bad person, and I don’t think I have ever felt so low in my life after my boss’s comments today”.

A number of his friends commented on his post some of which were deemed “inappropriate” including some being homophobic and another telling Austin he should “punch his boss in the face because it would make him feel better”.

Austin was asked by the workshop manager to attend a meeting in his office with a witness present. Austin was told the meeting was to discuss his use of social media, the Tribunal heard, and it was only once the meeting was underway that Austin became aware it was a disciplinary hearing. The Tribunal heard Austin was “shell shocked at the way in which he was brought into the disciplinary meeting”.  It was referenced by the employer that the use of social media was covered in the Handbook, which it wasn’t.

He was suspended whilst they made their decision.

The next day Austin was telephoned and told he was dismissed and that a letter would follow in the post. On the same day he was informed in writing that he had been dismissed on the grounds of gross misconduct and was therefore dismissed without notice.  Austin appealed but the dismissal was upheld.

The Employment Tribunal ruled that he was unfairly dismissed due to inadequate investigation, failure to be given proper notice of the hearing or opportunity to prepare for it, along with any evidence of details of the allegations and awarded Austin £28,560.

How to avoid this:–

  1. Ensure that you have a detailed Social Media Policy, setting out what your standards and expectations are and what the consequences are for employees who breach it. Set out what constitutes Gross Misconduct when using social media. Ensure it is well communicated and that managers are trained in its application.
  2. Carry out a full thorough investigation before you take any action which is detailed and does not leave any stone unturned.
  3. Follow a fair and non-discriminatory disciplinary process in line with the ACAS Code of Practice, giving reasonable notice of the hearing, offering the right to be accompanied at the hearing and at the final stage of the process allow the right of Appeal.
  4. The appeal allows the dismissal to potentially be overturned and/or to correct and incorrect process, so it is an essential step that should not be missed.

In summary, speak to your Elcons Advisor before doing anything!

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