Ms S Watkins v One Direct Maintenance Limited — 2020

The claimant, a Resident Liaison Officer, was dismissed after a Facebook post on 19 February 2019 concerning AB's case. The respondent treated the post as a potential gross misconduct matter under its social media policy, investigated on 19 March 2019, held a disciplinary hearing on 29 March 2019, summarily dismissed her on 8 April 2019, and rejected her appeal on 23 May 2019. The tribunal also made a rule 50 anonymity order concerning Ms AB and her family and later made that order permanent.

The tribunal held that misconduct was the respondent's genuine reason for dismissal and that the Burchell requirements were met. It found that the respondent reasonably believed the claimant had breached the social media policy, confidentiality obligations and code of conduct, that the post could reasonably be read as referring to OHG and AB's family as tenants, and that the investigation and disciplinary process were not unfair merely because of the short investigation meeting, the notice given, the use of prepared questions, or the timing of paperwork.

The dismissal was nevertheless unfair because the tribunal found that the outcome of the disciplinary hearing had been predetermined. It relied on the claimant's contemporaneous messages to Mr Abbott on 28 March 2019, the email chain in which senior HR anticipated that the next day's hearing would lead to summary dismissal, and Ms Hounslow's evidence about what Mr Abbott said to her. The tribunal accepted that the respondent's refusal to accept the claimant's resignation and the steps taken around the disciplinary hearing showed that the claimant had not received a fair hearing from a decision maker free to make up his own mind.

On remedy, the tribunal declined to apply a Polkey reduction because it was too speculative to assess what a fair process would have produced. It found the claimant 100% responsible for the circumstances leading to dismissal, so both the basic and compensatory awards were reduced to nil under ss.122 and 123 ERA 1996. The separate thirteen weeks' notice pay claim was dismissed because the claimant's post was held to amount to gross misconduct.