Ms L Henderson v - Solicitor Ashgill Care Home Limited — 2021

Ms Henderson worked for Ashgill Care Home Limited as an Activities Co-ordinator from 23 November 2015 and, from May 2018, also managed the respondent's Twitter account. The tribunal found that she had been told to familiarise herself with the respondent's social media policy, which was available in the staff room and on the shared hard drive. On 2 January 2019 the home manager received an anonymous text with screenshots of two Facebook posts dated 3 September 2014, one about immigrants and one containing anti-Muslim content. After an investigation meeting and disciplinary meeting, the claimant was dismissed for gross misconduct on 29 January 2019; her appeal was later rejected.

The tribunal accepted that the reason for dismissal was conduct, namely the claimant's personal Facebook posts, and that this was a potentially fair reason under the Employment Rights Act 1996. It found that the respondent genuinely and reasonably believed the claimant had made both posts and that they breached the social media policy. The tribunal also found that the respondent had carried out as much investigation as was reasonable in the circumstances, and that the claimant knew or ought to have known about the policy because it had been drawn to her attention in connection with her Twitter duties.

The dismissal was nevertheless found to be unfair under section 98(4) ERA 1996 because of procedural defects. The tribunal held that Miss Jalloh failed to share with the claimant a later finding that there was no evidence of activities arranged with residents from ethnic minorities, and that the appeal stage unreasonably refused to engage with a letter said to be from the claimant's son, which purported to accept responsibility for one post. Those failures were outside the range of reasonable responses, even though the tribunal accepted that the posts were publicly visible, could offend staff, residents and their families, and could harm the respondent's image and reputation.

On remedy, the tribunal accepted that the claimant had suffered financial loss valued at £4,184.58 and had taken reasonable steps to mitigate her loss, but it held that there was a 100% chance she would have been dismissed in any event. It also found that the claimant's breach of the social media policy was the sole cause of dismissal and that any compensatory award and any basic award would be reduced by 100%. The result was that the unfair dismissal claim succeeded, but no basic award, compensatory award, or other monetary compensation was made.