Transcription

• Speaker #0

  Today in the Indicator HR and Employment Law podcast, we're discussing the judgment in the case of DHL Services Limited and Ignatowicz, in which the Employment Appeal Tribunal was asked to consider whether a tribunal had been entitled to make an order for reinstatement in an unfair dismissal claim. I, a warehouse operative, unsuccessfully applied for an administrative role with his employer, and subsequently raised a grievance about the recruitment process. On 6 June, I posted his grievance on Facebook, adding negative comments saying, among other things, that the capitalist dictatorship is evil and it has to be destroyed. Over the next three months, I made further Facebook posts drawing comparisons between the recruiting manager and a Nazi, saying that his enemies had dug graves for their own children, and suggesting that the appeal manager had made crucial mistakes and was incompetent. or mentally unwell. The employer dismissed I for gross misconduct in relation to his 6 June post. An employment tribunal was not satisfied that I understood or had been trained on his employer's social media policy and noted that breach of the social media policy was not listed in the disciplinary policy as an act of gross misconduct. The tribunal upheld I's unfair dismissal claim, ordered that he be reinstated by the employer, and reduced his compensation by 10% for his contributory conduct. In posting his grievance on Facebook, on appeal, the Employment Appeal Tribunal overturned the reinstatement order, holding that in making this order, the tribunal had failed to consider I's conduct during the litigation and had substituted its own view, rather than conducting an assessment of whether reinstatement was impracticable, because the employer genuinely and rationally believed that it could no longer have any confidence in I. With regards to the deduction made from I's compensation for contributory conduct, The Employment Appeal Tribunal confirmed that a different approach applied to the basic and compensatory awards. For the basic award, the relevant conduct is any conduct before the dismissal, or if the dismissal was with notice before the notice was given. It is temporal in nature that is the conduct must have occurred before dismissal, or if dismissal was on notice before notice was given, and the employer need not have dismissed because of the conduct, or even have known about it at the time of dismissal. For the compensatory award, this is limited to conduct which caused or contributed to the unfair dismissal claim. It is causal in nature that is the dismissal must have been caused or contributed to by the conduct and the employer must have known about the conduct and it must have been taken into account in the dismissal. Consequently, the employee's conduct that occurs between dismissal or giving notice of dismissal and the rejection of any appeal against dismissal can only be taken into account with regard to the compensatory award. This is because any conduct taken into account at the appeal stage must, as a matter of fact, cause or contribute to the overall process of terminating the contract of employment, so can be taken into account. Such conduct, however, cannot be taken into consideration in relation to the basic award. The Employment Appeal Tribunal sent back the claim to the same tribunal to reconsider the issues of contribution and reinstatement, including consideration of the relevance of I's right to freedom of expression which the Tribunal had failed to consider previously. The Employment Appeal Tribunal noted that when the Tribunal assesses the practicability of reinstatement, it will need to consider the situation as it is at the date of the remitted hearing, and that I had made further comments that may be thought to be wholly unacceptable. Look out for further episodes in this series to stay up to date on all things HR and employment law related.