Why dismissal for minor, non-malicious social media posts can constitute unfair dismissal

Employment Law cases can relate to all manner of things: sexist make-up policies, discriminatory Secret Santa gifts and, in the case of one Canadian law suit, a claim by employees for ‘psychological torture’ due to the employer playing Christmas songs on loop from November onwards.

I’ve recently read a case worthy of joining this list – namely, the ‘Facebook meat advertisement’ case. This is the case of Hayward v Noel Chadwick Limited heard in Liverpool Employment Tribunal, which published its judgment in March 2017.

As some readers in the Wigan area may know, Noel Chadwick Limited (“NCL”) is a typical local butcher shop which heavily relies on local reputation and footfall in the Standish area. The only real ‘online service’ provided is an email service requesting local deliveries.

In this case, Mr Hayward sent a public Facebook message to his then-girlfriend about the cost of packages of meat from an online meat company. The company wasn’t a competitor and operated in a different manner (i.e. online-only and a wholly different types of product). Put plainly, the only similarity was that they sold meat (in the same way that Dacia and Ferrari are similar because they sell cars, for example – it is the same product but very different ends of the market wihtout being ‘true’ competitors competing for the same customers).

Unfortunately, the Directors of NCL considered the post to be an “advertisement”. They also argued that they thought the post was made in bad faith and was “malicious”. So what did the Employment Tribunal decide?

Unfair dismissal resulting from demotion to do “officey things”

Zena Dickenson worked for 21 years at Easington Lane Primary School. From 2009 she was employed as the School Business Manager. She was responsible for a £1.2 million budget and she had 15 employees reporting directly to her.

In 2015 it became apparent that there would be an overspend and reduced income for reasons including shortfalls in the ‘pupil premium’ income and income from ‘early years’. She was approached by a clerk/receptionist, Kellie Todd, who wanted to know what her prospects were. Mrs Dickenson said that she could not be guaranteed additional hours in the future and there was a possibility that there would be redundancies. Ms Todd reported to a senior teacher, Hannah Wardle, that she was upset as a result of the conversation with Mrs Dickenson. Hannah Wardle in turn reported the matter to head teacher, Sarah Nordstrom, who commenced an investigation. The school’s HR adviser, Paula Barclay, interviewed Hannah Wardle, Kellie Todd and others and prepared draft witness statements for them. She advised Sarah Nordstrom as follows:
“I would start with

“There are some rumours in the school that there is going to be redundancies next year – what you know about this? and let her speak.

“If her response is she doesn’t know anything about it probe a little by asking if she denies having any conversations with colleagues about redundancy, reducing hours etc.

“Then ask her how this risk has not been brought to your attention and why it has not been reported on in the recent Finance meetings.

“If you believe the explanation about the budget stacks up you may choose not to suspend her. However, I think we both agree that she has stepped outside of her remit as Business Manager and SMT in divulging this information to colleagues. Therefore you can tell her you have concerns about this and an investigation will take place but you could do this with her still at work. However, unless she comes up with some plausible explanation which eliminate your concerns about funds the prudent approach would be to suspend her to allow a full and fair investigation to take place.

“Explain to her that this is not disciplinary action and that she will be paid while she is off. She will receive a letter confirming the position and she should not speak to anyone about this.”
Mrs Dickenson was duly suspended on 9 December 2015 to investigate allegations that she had a discussion with a colleague about the risk of redundancies when this had not been discussed by the senior leadership team and that, despite having the discussion she had not raised financial concerns with the senior leadership team. After a couple of false starts a disciplinary hearing took place on 26 February 2016. It was agreed that her suspension would be lifted. On attending work the following Monday she found that her security pass had been disabled. She was told not to go into the office but to wait in reception. The head teacher informed her that a performance improvement plan was to be put in place. She would no longer have any line management responsibilities and she would have to work in the main office at reception updating the school’s database until the plan was put in place.

Mrs Dickenson became distressed and said that she would like to be considered for redundancy. She was taken home and remained off sick until she resigned.

In the meantime Paula Barclay sent her two letters, one asking her to attend a formal absence review meeting and the other asking her to attend a protected conversation meeting. Mrs Dickenson did not attend the meetings. However there were negotiations via her union rep which led to a proposed termination date and settlement figure. After obtaining legal advice a revised offer was made on her behalf which the employer was not prepared to meet.

On 26 April she wrote and submitted a letter of resignation, providing the requisite three months’ notice. She set out various grounds on which she considered that both she and her position had been undermined. In particular she noted that Mr Trotter, the deputy head and occasional acting head, had effectively demoted her to the position of receptionist and that she had been told by him to do “officey things”.

Defending an unfair dismissal claim which could have settled

News has emerged of a very costly outcome for the BBC following its failure to defend an unfair dismissal claim brought by former chief technology officer, John Linwood. Mr Linwood was dismissed in 2013 following the disastrous failure of the Corporation’s Digital Media Initiative. Launched in 2008 it was intended to modernise production and output by transferring to a fully digital, tapeless workflow. However, after numerous problems and delays, the BBC’s contract with Siemens was terminated in 2009. It emerged that Siemens had been appointed without a tendering exercise. At the time of termination in 2009 the BBC’s losses were £38.2m but these were partially offset by a £27.5m settlement paid by Siemens.

In 2011 the BBC was criticised by the National Audit office for its mishandling of the project. Details of the sorry tale were set out in the NAO’s full report issued in January 2014. Remarkably it continued to limp along until an embarrassing press release was issued by Director of Operations Dominic Coles on 24 May 2013 which confirmed its closure once and for all. Remarkably, by then the overall losses had spiralled to £98.4m. News of the abandonment of the project coincided with the announcement that Mr Linwood had been suspended pending an external investigation. He was sacked in July 2013 and did not receive a pay out.

In January 2014, when giving evidence to the Public Accounts Committee, Mr Linwood revealed that he had brought legal proceedings against the BBC, essentially on the basis that he had been scapegoated. His claim was heard in the London Central Employment Tribunals throughout most of May and four days in June 2014, following which the unanimous decision of the Tribunal was that he was unfairly dismissed. There was a 15% finding of contributory fault.

What makes the story of renewed interest is that it has now emerged that the BBC spent nearly £500,000 on defending a claim that could have been settled for £50,000. A Freedom of Information Act request has revealed that the BBC spent £498,000 on costs, VAT and expenses, plus damages estimated at £80,000. However, an offer to settle of £50,000 had been rejected before the bulk of the legal fees were incurred.

According to the Tribunal judgment a culture of “sacrificial responsibility” at the BBC led to “avoidance strategies” and “the steering of the spotlight of blame in other directions” by those who feared that they would be associated with “a sinking ship”.

Is it possible for an unfair dismissal claim to be accepted after six years?

If you ask most people involved in dealing with employment law matters they will correctly tell you that the time limit for commencing a claim for unfair dismissal is three months from the date of termination of employment. As we have seen on many occasions the time limit is applied very strictly and just about the only basis on which it can be extended is if it was not reasonably practicable for the claim to lodged within the time available.

The admittedly unusual case of Miss B Higgins v The Home Office and The Attorney General shows the extent to which a time limit can be extended in appropriate circumstances. Miss Higgins claimed that she was constructively dismissed by her employer in  December 2007 but she did not present her complaint of unfair dismissal to an employment tribunal until 27 January 2014. The grounds of claim were pretty unclear and there was at least one inadmissible claim for compensation for loss suffered by the claimant’s mother. Unsurprisingly the claim was rejected by an employment judge as an abuse of process because (i) it was brought outside the applicable time limits,(ii) the remedies sought did not appear to be those that a tribunal could award and (iii) the claimant did not appear to be claiming unfair dismissal. Miss Higgins appealed to the Employment Appeal Tribunal.

She had worked as an immigration officer for the Home Office from 2003 until December 2007. She maintains that in the course of her employment she applied for a position with MI5. Judge Serota QC noted that in the course of her employment Miss Higgins had mental health issues and in October 2007 had been admitted to a psychiatric hospital or unit where she had remained for several days. She tendered her resignation on more than one occasion but was allowed to withdraw the resignation. However, when she resigned on 26 or 27 November 2007, expiring on 23 December, she was not allowed to withdraw the resignation. This was the basis of her claim for constructive unfair dismissal.

In early 2008 she instructed solicitors in connection with her potential claim but maintained that she was too unwell to commence proceedings. The standard three months’ time limit expired on 22 February 2008 but the ET1 was not lodged until 27 January 2014.

more about domestic workers, unfair dismissal and illegal contracts

Last month we reported the decision in Jose v Julio (and other linked cases) concerning au pairs and the minimum wage.
This month sees a new case looking at the position of a domestic worker from overseas and the extent to which she could benefit from UK employment law rights. The complications in Zarkasi v Anindita and another were that (i) this worker entered the UK using false documents obtained by her employer – with her full agreement and co-operation, (ii) she was thus an illegal immigrant with had no legal right to work in this country, and (iii) she believed – or at least was prepared to claim – that she had been the victim of human trafficking.

award of nearly 1m pounds for race discrimination and unfair dismissal

A former NHS worker, Elliot Browne, has been awarded £933,115 in compensation for race discrimination and unfair dismissal.
Mr Browne was a divisional director at Central Manchester University NHS Foundation Trust until he was dismissed in 2008. An employment tribunal sitting in Manchester found that Mr Browne had been subjected to discriminatory treatment in the final year of his employment with the Trust. He had spent 34 years working for the NHS and was the first and only black man to hold the position of divisional director for clinical scientific services with the Manchester Trust.
In 2007 his manager raised concerns about overspending in the department and Mr Browne’s perceived lack of "personal leadership". He subsequently raised what the tribunal found to be a "well-founded" grievance about race discrimination, claiming that he had been unfairly singled out for disciplinary action and criticism by comparison with white work colleagues.
Mr Browne maintained that the result was that members of staff "closed ranks" and began disciplinary proceedings which may have led to dismissal. He was signed off work with stress and in May 2008 he was suspended and dismissed.

unfair dismissal qualifying period change will not be retrospective

As we reported last month, the qualifying period in order to bring a claim of unfair dismissal is being restored to two years. Although the change will come into force this April it will only apply to employees whose employment commences on or after 6 April 2012. It will therefore take some time for the change to have a practical impact for employers.
For example, someone who commences employment on 5 April 2012 will secure protection from unfair dismissal from 5 April 2013, whereas someone who commences employment on 6 April will not achieve the same level of protection until 6 April 2014.
However, it is vitally important for employers to remember that there are unfair dismissal claims for which there is no qualifying period so that protection from unfair dismissal is available from day one. These are chiefly claims resulting from the assertion of statutory rights and those which can lead to findings of automatically unfair dismissal. Subscribers should check our employment law guide for details of those unfair dismissal claims in respect of which the qualifying period does not apply.
It is equally important to remember that the qualifying period only applies to unfair dismissal claims.

unfair dismissal as a result of claiming to have been unfairly dismissed

The case of M-Choice UK Limited -v- Aalders, which was recently considered by the Employment Appeal Tribunal, demonstrates the complexities which can arise when trying to establish when someone was dismissed. The date of termination can be vital in determining whether or not a claim of unfar dismissal can be maintained.

Ms Aalders commenced employment with M-Choice on 1 February 2010. She was entitled to six months’ notice of termination of employment. On 26 July 2010 she was sent a letter which purported to give notice of termination, stating “as from 26 July 2010, ending the work relationship as per (sic) 1 February 2011 at the latest”.

newsletter – possible changes to unfair dismissal and other law following BIS review

The length of service needed to qualify for unfair dismissal rights has been changed from time to time. It started at six months when unfair dismissal was “invented” in 1971. It was increased in 1980 to one year (two years for small firms of 20 or less employees) and then to two years (for employees…