Tales from the Tribunal
We take a look at two recent Employment Tribunal decisions and the practical points employers can take away from the decisions.
The first case involved an IT support manager, Mr Rawlinson, who resigned after being refused access to a company van and subsequently brought a claim for constructive dismissal. For a recap on the law relating to constructive dismissal, see our previous articles here and here.
Mr Rawlinson’s job involved transporting IT equipment between sites, for which he used his personal car. He discovered that his insurance did not cover this, as he was not running his own business. He asked for a company van, but his request was refused. Mr Rawlinson was signed off with work-related stress. He raised a grievance and then resigned. Mr Rawlinson’s grievance was eventually heard but was not upheld. He appealed unsuccessfully.
Mr Rawlinson had previously complained that he was on a 40 week per year contract but was effectively working full time, that there was a continued lack of appreciation, and that he was left out of planning, leaving him angry and frustrated and resulting in loss of motivation. The refusal of the van felt like a “hammer blow”.
The Employment Tribunal found that Mr Rawlinson’s employer’s behaviour was a “classic last straw”. Mr Rawlinson was awarded £10,000 compensation.
An incident which may in itself not amount to a fundamental breach can amount a “last straw” entitling the employee to resign. The Tribunal criticised Mr Rawlinson’s employer for ignoring his concerns for over 4 months despite his attempts to address his concerns, and concluded that by ignoring his concerns, the employer was in breach of duty.
It is important to address employee’s concerns in a timely way, or if that is not always possible, the employer should set out a timeframe for dealing with them, even if they may seem trivial.
In the second case, Mr Kurmajic, a Sainsbury’s employee, posted details (including the name, age, car registration number and address) of a driver whose car became stuck on a ramp in the supermarket’s car park. The post would later be described by the Employment Tribunal as an “ill-judged and insensitive attempt to draw attention to his fitness to drive”.
The store manager saw the Facebook post and felt that Mr Kurmajic had potentially committed gross misconduct, as his post was in breach of the social media policy. Another manager investigated and Mr Kurmajic was suspended.
Following a meeting with the store manager, Mr Kurmajic was dismissed for bringing the company into disrepute. Mr Kurmajic appealed. He argued that the social media policy referred to ‘customers’ but it wasn’t clear if the driver was a customer. Mr Kurmajic also said that he hadn’t read the social media policy and should have had training on it.
Mr Kurmajic’s internal appeal was unsuccessful and so he brought a claim in the Employment Tribunal. The Tribunal found that Mr Kurmajic’s Facebook post was potentially a fair reason for dismissal, but it found that there had been flaws in the process Sainsbury’s had followed.
The store manager was criticised for not giving more than superficial consideration to sanctions other than dismissal. Although he had completed a ‘decision making summary’ form which recorded that he had considered a final written warning and no further action as possible outcomes, he did not (as the form required) explain why.
The Tribunal found that Sainsbury’s could not have relied on damage to the brand as a reason for dismissal because no damage had been done – the driver had taken no action.
The store manager was further criticised for not making himself sufficiently familiar with the contents of the policies which it was alleging Mr Kurmajic had breached. The ET also stressed that:
“A reasonable employer would…be able to evidence a comprehensive training program and communication trail which… at the very least ensure[s] that it is made clear to employees that it is their responsibility to acquaint themselves with the content of any new policies…”
Mr Kurmajic’s claims for unfair dismissal and for his notice pay were successful.
The parties were given 28 days to decide between themselves how much compensation Mr Kurmajic should be awarded, however the Tribunal ruled that, as Mr Kurmajic was partly to blame for his dismissal, his compensation award would be reduced by 30%.
On the face of it, the Facebook post would seem to many sufficiently serious to amount to gross misconduct, and the Tribunal confirmed that is was a potentially fair reason for dismissal. However, despite Sainsbury's having a social media policy, there was no evidence of the employees receiving any training on it.
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 firstname.lastname@example.org).