M Austin v A1M Retro Classics Limited Heard by CVP at: Newcastle Upon Tyne — 2020

The claimant, a paint sprayer employed from 1 December 2014, was summarily dismissed on 18 February 2020 after a heated exchange with the managing director on 13 February 2020 and Facebook comments made afterwards about feeling low after his boss's comments. The tribunal accepted that the managing director was agitated and shouting during the meeting, and it accepted the claimant's evidence that the Facebook discussion was within a small, essentially private group.

The tribunal found the respondent's investigation into the social media posts was minimal. It did not check the size of the Facebook group, the privacy settings, or the actual reach of the posts, and it did not ask the claimant to remove the material before deciding to dismiss. The tribunal also found the respondent misread its social media policy by treating the claimant as if he had to police or remove comments made by others, when the policy did not impose that obligation. It rejected the managing director's late evidence about earlier bullying incidents as unsupported by the pleadings and witness statements.

Applying s.98(4) ERA 1996, the band of reasonable responses, and the Burchell test, the tribunal held that the respondent did not carry out a reasonable investigation and did not have reasonable grounds for a belief that dismissal was justified. It also found that the appeal, heard by Mr Henry, was not a reinvestigation and did not cure the defects. The tribunal declined to make any contributory fault or Polkey reduction.

On procedure, the tribunal found the claimant was brought into a disciplinary meeting on 17 February 2020 without proper notice and without a genuine choice of representative, contrary to the respondent's own disciplinary policy. The separate s.10 Employment Relations Act 1999 claim failed because there was no evidence that the claimant had requested a trade union representative before the hearing. The tribunal also held that the facts did not amount to gross misconduct, so the wrongful dismissal claim succeeded. Remedy was assessed at a basic award of £3,600 and a compensatory award of £24,960, made up of past loss of £15,155, future loss of £5,325.88, lost statutory rights of £500, and a 20% uplift of £4,196. The total compensation was £28,560, and the recoupment provisions applied, with a prescribed element of £15,003.45 for 18 February 2020 to 23 November 2020 and an excess of £9,956.55.