A building company driver who was sacked for posting Facebook comments about the firm’s vehicle maintenance failings has won an unfair dismissal claim against his former employers.
Niall Kass was working for Perthshire company, Gillies and Mackay Ltd, when the police stopped his vehicle and issued him with a £60 fixed penalty after discovering the vehicle’s MoT had expired.
Mr Kass then critisised his employers on Facebook and his disparaging comment was seen by the company’s Business Manager, Carra Marshall.
It was revealed that Ms Marshall immediately asked Mr Kass to remove his Facebook post as she stated is showed a lack of respect for the company, was uncalled for and would be damaging to the business.
Ms Marshall’s father, John Mackay, one of the firm’s Directors, was informed of the message and told Mr Kass that his actions constituted serious misconduct, warranting summary dismissal.
In viewing the case, employment tribunal Judge, Ian McFatridge, said that there had been procedural failings in the dismissal and Mr Kass had not been given the chance to explain himself.
The Tribunal also found that when he appealed the dismissal within the company, it had not been carried out independently.
In addition, the tribunal ruled that his comments could not be seen by the public at large and the considered the company had overreacted.
They said pre-Facebook, Kass would have “vented his frustration by telling his friends and family of the incident directly or on the telephone,” and this would not have been grounds for instant dismissal.
In delivering the verdict it was ruled that Mr Kass had every right to be upset when, because of his employers’ shortcomings, he received the fixed penalty notice.
However Mr Kass’s compensation was reduced by 20% to £1,160, after it was judged that he had contributed to his sacking.
Commenting on this case, Workplace Law HR Consultant, Heidi Thompson, said:
“This is an interesting case and particularly prudent with the continual increase of social media. It remains a distinct area of concern for employers as to how far they are able to control what employees say in public forums, particularly when it is deemed defamatory as is suggested in this case.”
“It appears that the reason for the police fine was due to the ‘fault’ of the employer, and as such, the tribunal considered it justified that the employee had made such a comment on Facebook. The argument also being that this was a personal Facebook account only available to his friends, one of which was also an employee of the company.”
Commenting on the reduction to Mr Kass’s compensation, Heidi stated:
“With regard to the reduction made to the Claimant’s award, this is due to the right of the Respondent to argue a reduction based on a number of factors, the key one here being that the claimant contributed to his dismissal by making the comments on Facebook, which the tribunal accepted.”
Heidi went onto say:
“When determining remedy, the tribunal will consider arguments from both sides and for the respondent this will include the above as well as other areas such as sums already paid to the Claimant, any state benefits the Claimant has received, the fact that the claimant may have failed to mitigate against his or her loss (i.e. by not attempting to find another job, that the Claimant failed to comply with the ACAS Code and also a “Polkey deduction” which is that the compensatory award should be reduced or limited to reflect the chances that the Claimant would have been dismissed in any event and that the Respondent’s procedural errors made no difference to the outcome.”
Providing employers with advice on how to deal with instances such as this, Heidi concluded:
“Overall this highlights the need for employers to have a clear social media policy. This then provides clarity on the rules and restrictions for employees and an understanding by managers as to the actions open to them with similar cases.”
“In addition, the main failing for this case was lack of procedure from the respondent. It does not matter what the allegation is or how serious it is considered to be, employers are required to follow the ACAS code of practice for disciplinary procedures and must have a robust procedure and trained managers. Without this they are likely to incur fines such as this and will make any tribunal case difficult to defend.”
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