On 13 February 2020, Michael Austin – who worked for A1M Retro Classics for five years before an unfair dismissal – was involved in what the tribunal heard was an “extremely heated discussion” with managing director Matthew Robinson about alleged poor work being carried out by the company.
What Happened in the Case?
Following what could only really be described as an argument with his boss, Austin wrote on Facebook that evening: “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.”
Unfortunately for the claimant, a number of his friends made comments on the post, aimed primarily at trying to reassure him, however “some of which were appropriate and some of which were inappropriate”, the tribunal heard. Some of the comments were homophobic in nature and one person even went so far to say that Austin should “punch his boss in the face because it would make him feel better”.
After discovering the Facebook post and the associated comments, the respondent subsequently dismissed Austin and argued that he had breached social media policy and damaged the business. The respondent further accused the claimant of “bullying” behaviour on more than 20 occasions.
Why Was this an Unfair Dismissal?
The claimant subsequently brought a successful claim of unfair dismissal in the Employment Tribunal and was awarded compensation of £28,560. The Judge ruled that the claimant had not violated the social media policy and added that he could not control comments made by others on his post. He also described the investigation carried out into the alleged misconduct as ‘minimal’ and ‘flawed’.
This case is again a useful reminder that, where there are any allegations of misconduct, it is vital that a thorough and fair investigation process is carried out. The tribunal ruled that the managing director of A1M Retro Classics “unreasonably confused what was required of an employee by the [company’s] social media policy”. Employment Judge O’Dempsey accepted that Robinson had “started shouting at the claimant and replied rather rudely when the claimant pointed this out” during the argument. The way in which he criticised Austin’s competence during this meeting was also “either new or worse than usual”.
The Judge highlighted the simple point that the company’s social media policy did not require the employee to police the comments of others. Judge O’Dempsey went on to add: “The managing director made no effort at all to find out anything about the [Facebook] settings that the claimant had and simply assumed a number of things; for example, how big the group was.” The judge concluded that there was no evidence that would have supported a reasonable employer the contention that the employee was engaging in a prohibited discussion.
The tribunal also ruled that Austin was not given any proper notice of this meeting, nor was he given an opportunity to prepare for it, nor any advance knowledge of what was being alleged against him, in order for him to prepare any kind of defence against it. Not only had the company failed to carry out a proper investigation, the procedure they followed was also flawed. With all allegations of misconduct, it is important not to jump to conclusions or make a decision before carrying out a robust investigation – as this can lead to argument that the outcome was prejudged and the decision to dismiss was unfair.