The claimant was employed as a room leader at the second named respondent’s nursery. She was tagged in a particular Facebook post by a friend and colleague which she subsequently ‘liked’ and commented under. This post contained a picture of a mother and daughter with the child asking to go to the park.  The caption read, “Sorry love, Mummy can’t take you to the park today, I hate other people’s children”.

When the respondent found out about the activity, she suspended the claimant on full pay claiming that it ‘gave the wrong impression’. The claimant was then invited to a meeting but was given no information as to what it related to, and was then handed a letter stating that after investigation she was being dismissed for gross misconduct. No right of appeal was offered.

After requesting an appeal, a further meeting was held but the claimant was given the opportunity to put forward her point of view. The tribunal found that there had been an automatically unfair dismissal as none of the statutory disciplinary procedures had been followed. The complete failure by the employer to follow the statutory procedures properly resulted in the tribunal holding that it was just and equitable to increase the compensatory award by 50%.

Practical Lessons

The tribunal noted that this was one of the worst examples of a disciplinary procedure they had ever come across. Indeed, it was clear from the date on the dismissal letter that the decision to dismiss had been taken in advance of the disciplinary meeting, which is totally contrary to both the letter and the spirit of the law on unfair dismissal.

The chronology of events was damning for the respondent, with the dismissal letter clearly indicating that the ‘disciplinary meeting’ was already a foregone conclusion. Notwithstanding that crucial error, the respondent also failed to explain to the claimant what the alleged gross misconduct actually related to, nor was it ever put to her.

This case reaffirms that some employers are falling foul of even the most basic of steps in the proper disciplinary procedures. In a case of alleged gross misconduct like the present one, the very least that can be done at the start is to make the employee aware of exactly the alleged conduct/activity, investigate it and allow representations to be made. The employer here completely failed to do any of those and ultimately paid the price.

This case review was written by John Taggart BL. NI Tribunal decisions are available on the OITFET website:

http://www.employmenttribunalsni.co.uk/