There can be situations where an employer only finds out about misconduct committed by an employee some time after it occurred. The question is can the employer then do anything about that historical misconduct?
A recent Employment Tribunal case examined this question (Creighton v Together Housing Association Ltd).
The facts of the case were that Mr Creighton had 28 years’ service with Together Housing. In 2015, one of Mr Creighton’s colleagues raised a complaint that Mr Creighton was bullying him. During the investigation into the complaint, the colleague revealed that Mr Creighton had posted derogatory comments about his colleague and the Company on his Twitter account. The tweets were on his public account which meant anyone could read these. However, the tweets had been made some years ago. Together Housing investigated this, and found evidence of the tweets. After following a disciplinary process, they dismissed Mr Creighton summarily for gross misconduct. Mr Creighton appealed the decision to dismiss him, but his appeal failed. He then issued a claim for unfair dismissal in the Employment Tribunal. He alleged that the investigation was unreasonable, that he had not made any recent tweets of a similar nature, and said they failed to take into account his long service and clean disciplinary record.
In order for a Tribunal to make a decision in such an unfair dismissal claim, the Tribunal must determine whether a fair process was followed, and whether the decision reached was within the “range of reasonable responses” open to the employer. The Tribunal have to be careful not to substitute their own view for that of the employer, so it is not for the Tribunal to say whether the decision to dismiss was correct or not, just whether it was or was not within the range of reasonable responses. The Tribunal held that the investigation and process followed by Together Housing had been fair. They also decided that the decision to dismiss was within the range of reasonable responses open to Together Housing. Therefore, the Tribunal dismissed Mr Creighton’s claim.
The case also brings to mind the previous decisions in British Waterways Board v Smith and Williams v Leeds United (which we covered in our article here), where in both cases the employers successfully relied on historic material to justify dismissal. However, it is still relatively unusual for these situations to apply.
The Creighton case highlights a particular issue in regard to internet and social media postings, which can remain accessible for many years. This means there is always the potential for comments to come back and bite later on. The employer was only made aware of the derogatory tweets years afterwards, but this was enough to commence disciplinary action and ultimately dismiss the employee.
Of course, this does not mean that any historical misconduct can always be dealt with in the same manner – ideally issues should be dealt with very soon after they occur. Historical misconduct which dates back many years may well be difficult to address, and it will depend on the individual circumstances and the nature of the misconduct in question. It is always best to take specific advice.
Do note that the decision in the Creighton case was at Employment Tribunal level only, so it is not binding on other Employment Tribunals, and different decisions could be made on similar facts in other cases.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).