The Respondent alleged that
Claimant had published 'Customer Personal Information' on social
media 'for all to see' and that the publication had 'damaged the business'.
Putting anything public on social media about the
company or its customers was a breach of the company's 'Social Media
Private messages on the other hand were protected by Article 8 of the
European Convention on Human Rights (ECHR)
which provides a right to respect for one's "private and family life,
his home and his correspondence.
The Claimant had admitted to making a
private post on social media about a guest, but the post did not identify the
guest in any way. However, by definition of making the post, the
Respondent had deemed the Claimant to have breached company 'Social Media policy'.
A breach of company social
media policy would be met by either a verbal
or written warning unless the investigation could show an effect on the business
in which case a Final Written Warning would be issued.
The investigation failed
to investigate if there was an effect on the business therefore could
not substantiate an effect on the business.
At the disciplinary
hearing the Claimant defended against the actual allegation that was put to
him. He used the
official and legally accepted definition of 'personal information'
to show that no 'personal information' of any kind was published;
therefore no damage could have occurred in the way the Respondent had
The Disciplinary Officer accepted that the
social media post did not identify the customer which, by
definition, meant the post contained no personal information.
Disciplinary Officer stated "it is clear who and what you
are referring too and therefore poses a threat to our reputation
with our customers". That may well have been his
opinion, but it was never substantiated. The post did
not identify the customer, or the place of work, which by definition
means it was not clear to anyone reading the post who or what it was
Posing a threat to the business, and
causing actual damage to the business, are two different issues. If you
see a threat you can deal with it before it causes damage and that is
what the Respondent did; dealt with the issue before it had a chance to
cause any damage. Yet, the allegation against the Claimant was that the
post had caused actual damage to the business.
procedures were quite clear in that damage had to be shown for the issue
to be 'Serious Misconduct'.
The investigation and the disciplinary hearing did not substantiate that
damage was caused by the Claimant's private post on social media; damage
to the business was never investigated and no supporting evidence of
damage was ever disclosed.
None the less, a first and Final Written Warning
was issued to the Claimant for 'Serious Misconduct'.
As the Respondent
failed to substantiate what damage was done by the social media post,
the sanction was not in accordance with the contractual disciplinary
The irony here is, the
Respondent breached company procedures to give the Claimant a higher
level of warning for breaching company procedure!
In Judge Horne's reasons for his decision
he rejected the Claimant's argument on 'personal information' stating that the
Claimant was concentrating on technical and legal definitions which
distracted away from the general point of concern which was that the
social media post was inappropriate.
Judge Horne was fully
aware that an inappropriate post on social media would carry the maximum
sanction of a 'Written Warning' unless it could be shown
the post had damaged the business.
However, the allegation against the Claimant wasn't that the post was
'inappropriate', the allegation was much more serious in that the
post was 'personal information' and had 'damaged the business'; by rejecting the Claimant's
argument in this instance Judge Horne was effectively penalising the
Claimant for defending against the very specific and serious allegations
that were put to him!
Judge Horne also said the Respondent was
entitled to look at the wider issues.
Judge Horne was correct, the Respondent was entitled to look at the
wider issues however, the Claimant was also entitled to have those wider
issues put to him; case law stated that
any disciplinary sanction must be imposed only in
respect of allegations that were properly investigated and brought to
the employee’s attention as part of the proceedings.
The wider issues were not properly investigated or brought to the
Claimant's attention during disciplinary proceedings which meant they
could not be relied on to impose the sanction. Judge Horne was also
fully aware that without damage to the business being substantiated, the wider issues would only carry the maximum sanction of a 'Written
Warning' if they were taken into account.
Judge Horne conveniently
Article 8 of the European Convention on Human Rights (ECHR)
which provides a right to respect for one's "private and family life,
his home and his correspondence;
which meant the private post was protected and should not have been
relied on to sanction the Claimant (had the post been made public by the
Claimant then there would be no protection under Article 8).
The allegations against
the Claimant were
publication of 'customer personal information' and 'damage to
the business' as a result of said publication, which were very
serious allegations, and that is what the Claimant defended against.
Wider issues were never
alleged or investigated, the Claimant was never made aware of any wider
issues, and as such the Claimant was not given a reasonable opportunity
to prepare or defend against any wider issues.
The Respondent couldn't
issue a 'Final Written Warning' with the evidence they had as no
damage to the business had been substantiated. If the Respondent took
wider issues into account in order to give the 'Final Written
Warning', they would be in breach of Employment Law and the warning would not be reasonable or
given in 'Good Faith'.
The Claimant subsequently
made a request for Judge Horne to reconsider his decision. In that
request the Claimant disclosed an email which the Respondent had given
him as part of a Subject Access Request. The email showed the
disciplinary outcome had been decided upon two weeks before the
disciplinary hearing had taken place. In the email the Disciplinary
Officer stated he was escalating the Claimant's sanction to a first and
Final Written Warning.
The email confirmed the
warning further breached Employment Law as it shows the warning was decided upon prior to
any disciplinary hearing taking place and, as such, the warning was
issued in 'Bad Faith' and should no longer be
intact, causing the dismissal to be unfair.
As the Respondent was tasked with putting
the tribunal bundle together, the email was given to them as part of the
Claimant's evidence. However, the Respondent failed to
include the email in the bundle and it was never disclosed to the
tribunal. Because there was knowledge of the email at the tribunal,
Judge Horne would not allow it to be entered as new evidence for
However, the law as it stood still
allowed Judge Horne to take the email into consideration if he chose to
but, he refused to do so because:-
"In my view the need for proportionality, the
public interest in finality of litigation, and the need to avoid delay
and expense, outweigh the general desirability that the tribunal should
consider all relevant evidence. The interests of justice do not favour
Judge Horne once more
aided the Respondent by this time allowing them to get away with removing evidence
from the bundle which showed the Final Written Warning was issued in bad