The claimant commenced employment with the respondent on 17th May 2017 as a Care Supervisor.   She worked in that role until her employment was terminated in October 2019. The issue arose in September 2019 when the Care Manager was informed that the claimant had set up a WhatsApp group for staff but it excluded two members of the team.  It should be noted that there was an ‘official’ WhatsApp group where staff could contact each other to exchange information or to discuss shifts.

An additional issue was that there had been a video posted online showing another member of staff berated and bullying one of the excluded members.  The Tribunal noted that the contents of the video were ‘most unpleasant’.  The claimant, it should be noted, was on a bus in Dublin and on holiday at the time.  The claimant did write into the chat following the video to say that she was thinking of leaving but stated that she had not watched the video and she did not have her earphones in on the bus journey. She stated that she had only watched the video after she had been dismissed.

A subsequent investigation took place with the claimant being asked to attend.  The claimant did not attend the arranged meeting but it was rescheduled.  A letter was allegedly provided to the claimant at this meeting which was dated two days prior to the meeting.  The letter outlined a series of allegations against the claimant including setting up the group, the fact that she should have notified the office in her position as Supervisor, as well as the content of the videos.  The claimant stated she never received this letter until after her dismissal.

The claimant continued to work for the respondent during this period.  A further meeting took place on 23rd October 2019.  The claimant was not accompanied at the meeting.  The Tribunal was provided with notes from the meeting but the claimant was never provided with same.

At this meeting the decision was made to ‘let’ the claimant ‘go’. It was noted that the allegations had been outlined to the claimant and that she had accepted the reason for the group was to exclude one individual (subject to the video) but not the other. The notes also outlined that the claimant was unapologetic for what had happened. The claimant issued a grievance about the process which was not upheld. It was not until the 23rd December that a dismissal letter was sent outlining that there had been several breaches of company policy including documented cases of bullying and harassment.

The Tribunal found that the claimant was unfairly dismissed. On the substance it was found that gross misconduct was the fair reason that the respondent had used to dismiss the claimant.  However, the respondent outlined that statements were taken from those involved yet they were never provided to the claimant or the Tribunal.  As a result it was not possible to form a view as to whether the respondent acted reasonably in making the decision.  Therefore, the procedural flaws in the dismissal fed into the substance meaning that there was an unfair dismissal.  The dismissal was also regarded as being procedurally unfair for numerous reasons.  It did not provide advance notice of the allegations against the claimant and the claimant did not have a reasonable opportunity to consider her response.  As a result, the process not only fell below the standards with the company handbook but also the statutory procedure required.

The claimant was awarded £5,200 in compensation.  This included a 50% uplift for a failure to follow the statutory procedure as well as a 20% deduction as a result of contributory conduct.  The contributory conduct being the failure, in her position as supervisor, to report the material that was being discussed on the WhatsApp group.

Practical Lessons:

This case, yet again, demonstrates the importance in ensuring that there is a proper process.  The fact that the process was not followed in relation to providing the claimant with the allegations and the evidence against her was interesting in that it fed into the substance of the dispute.  It led to the fact that the decision was not within the bands of reasonableness as the Tribunal could not consider whether it was reasonable in the circumstances considering the lack of evidence.  The takeaway from this case is that to ensure both substantive and procedural limbs are satisfied the employee must be provided with the allegations and evidence so they can make their own representations.

NI Tribunal decisions are available on the OITFET website: http://www.employmenttribunalsni.co.uk/