When considering whether an employee's misconduct justifies their dismissal, context is everything. An Employment Tribunal (ET) made that point in the case of a warehouse operative who responded angrily on social media after she was laid off at the start of the COVID-19 pandemic (Borysiewicz v Yours Clothing Ltd).
The woman and some of her colleagues were laid off, without pay, shortly before the first lockdown came into force. They formed a closed Facebook Messenger group on which disparaging comments were made about the company and members of its management team. She was later placed on furlough and, on her return to work, faced disciplinary proceedings. She was accused of bringing the company into disrepute and was ultimately dismissed.
Ruling on her unfair dismissal claim, the ET noted that some of her comments were profane and intemperate and that a potentially fair reason for dismissal existed. The manager who made the dismissal decision genuinely believed that her social media activity amounted to misconduct. Given the onset of the pandemic, the employer may have had little choice but to lay off staff.
In upholding her complaint, however, the ET noted that she was a relatively long-serving employee with an otherwise exemplary disciplinary record. She had not previously displayed attitude problems and her comments were made in a closed group, outside working hours. She had no forewarning that they would be disclosed to her employer or viewed as constituting misconduct.
When viewed in the context of the pandemic and the unheralded decision to lay her off, her comments amounted to little more than venting, or a workplace moan against management, at an emotional and stressful time for all concerned. The ET also identified procedural flaws in the investigation and disciplinary process. The amount of her compensation – which would be reduced by 10 per cent to take account of her own contributory fault – would be assessed at a further hearing, if not agreed.
We can assist you in dealing with any matters relating to unfair dismissal. Contact Emma-Louise Hewitt e.hewitt@sydneymitchell.co.uk 08081668860 for expert advice.
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