Ms. Sylwia Borysiewicz v Yours Clothing Limited — 2022

Ms Sylwia Borysiewicz was employed by Yours Clothing Limited from 5 November 2012 and was a Team Leader at the respondent's distribution centre. After being laid off without pay during the early Covid-19 period, she posted comments in a private Facebook Messenger group formed by laid-off employees. The respondent investigated in June 2020 and dismissed her summarily for gross misconduct, relying on the posts, alleged bullying/harassment, alleged breach of confidentiality, and an alleged breach of suspension terms. The tribunal found that the sole reason for dismissal was conduct, so the case proceeded as a conduct dismissal under section 98(2) of the ERA 1996.

The tribunal held that the investigation and disciplinary process were procedurally unfair. The respondent relied on an incomplete, non-verbatim translation of the Polish messages and did not obtain a reliable translation of the full Messenger exchange or give the claimant the full conversation in advance. The tribunal found that the translation used by the respondent contained an inaccurate reference to a racist word, that the respondent had the wrong context for some of the messages, and that the decision-makers did not have enough material to assess the posts properly. It also noted the delay of around three months before the investigation began, the confusion over which policy or policies were said to have been breached, and the absence of evidence from anyone said to have been bullied. On that basis, it found that the respondent did not have reasonable grounds to sustain a belief that the claimant's conduct amounted to bullying or harassment.

The tribunal also held that dismissal was substantively outside the range of reasonable responses. It accepted that the claimant's posts were intemperate and profane, but found that they were made in a closed group during an immediate layoff at the start of the pandemic, without any social media policy and without clear warning that such conduct might lead to dismissal. It found that the respondent gave little or no real weight to the claimant's long service and clean disciplinary record. On consistency, it found that Malgorzata Gromek, who had a more senior supervisory role and posted similar profane comments, was not disciplined, and that the cases were truly parallel. The tribunal therefore upheld the unfair dismissal claim, refused any Polkey reduction, and found 10% contributory fault to be applied to the basic and compensatory awards at a later remedy hearing.