The importance of consulting a specialist employment solicitor before embarking on a disciplinary procedure likely to result in the dismissal of an employee was highlighted by a recent case in the Manchester Employment Tribunal, where a man who was dismissed for sharing details of a rival company’s products on Facebook succeeded in his claim for unfair dismissal. The facts provide a stark reminder to employers of the value of taking advice to ensure that correct decisions are taken and procedures followed.
Michael Hayward was fired by butchers’ firm Noel Chadwick, where he had worked for seven and a half years, for allegedly advertising one of Noel Chadwick’s competitors. In his Facebook post, Mr Hayward had recommended a business called Fresh Meat Packs North West to his then-girlfriend (who is now his wife).
The directors of Noel Chadwick dismissed Mr Hayward for gross misconduct and breach of contract. The company did not issue a written or verbal warning to Mr Hayward, give him an explanation about his actions or the right to appeal. Nor did it offer him the chance to have someone with him at the disciplinary meeting. Although Mr Hayward had been ‘pulled up’ over his use of social media before the incident, he was not warned that such behaviour could lead to his dismissal.
The tribunal awarded Mr Hayward £4,891 in lost wages and compensation and the reimbursement of his £1,200 tribunal fees.
In his ruling, Judge Keith Robinson noted: “It is not an advertisement. The post contains information about the cost of packets of meat purchasable online from a company known as Fresh Meat Packs North West Ltd. They are not a direct competitor of the respondent.”
The judge also said the two businesses were different in structure. Although it sells the same products, Fresh Meats takes online orders, whereas Noel Chadwick takes few, if any, online orders. Unlike Fresh Meats, Noel Chadwick also has a deli and restaurant.
He added: “Mr Hayward’s misdemeanour, if one can call it that, was minor. A post on Facebook about the selling of meat to his girlfriend and the cost of that item cannot constitute gross misconduct. He was not in breach of any social media policy. It is fanciful of the respondent to suggest that there would be any financial loss to them with regard to other people seeing the post. It is also fanciful to say that such a post harms their reputation.”
Gaby Hardwicke Employment Law Partner, Paul Maynard, said: “There are two key lessons for employers that emerge for this case. Firstly employers must ensure that they follow fair disciplinary procedures in line with the ACAS Code of Practice.
“However, whatever procedure is followed the test for whether something amounts to gross misconduct is part factual part legal and in this respect there is no substitute for taking advice from an experienced employment solicitor. Expert legal advice would have exposed the flaws in the employers case at an early stage.”
Expert employment solicitors in Eastbourne, Hailsham, Bexhill and Hastings
For expert legal advice on disciplinary matters or any other employment law issue, please email Paul Maynard or call him on 01323 435 900. To learn about Paul’s skills and experience, please view his website profile.
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