This week’s case explores what happens when social media posts become the scapegoat for whistleblower dismissals.
Last week, we had the case of Anne-Marie Alexis v the Westminster Drug Project (WDP) highlighting the challenges of balancing restructuring needs, disability accommodations, and maintaining trust between employers and employees. For those that missed it you can find it here.
Background
In this case, five employees of a registered care home provider, N Notaro Homes Ltd, claimed they had been unfairly dismissed after making multiple protected disclosures. Protected disclosures are disclosures made by employees that reveal a breach of legal obligation, risks to health and safety, or other serious misconduct. The claimants alleged they were dismissed for making these disclosures, which they argued were in the public interest, and that their dismissals were a result of their whistleblowing.
The four successful claimants had all been dismissed by the same individual, for allegedly breaching the care home’s social media policy. Each of the claimants had posted on social media in a manner that the respondent deemed inappropriate, and this conduct was cited as the reason for their dismissal. However, the Employment Tribunal (ET) found that the dismissal was not genuinely related to the alleged breach of the social media policy. Instead, the ET concluded that the true reason for their dismissals was their protected disclosures. In other words, the employees were dismissed for whistleblowing, which is a protected activity under employment law.
Despite agreeing with the claimants that the dismissals were unfair, the ET had to consider the issue of compensatory awards. The respondent argued that the compensatory awards should be reduced, as the claimants’ social media posts had contributed to their dismissals. Under Section 123(6) of the Employment Rights Act 1996, an Employment Tribunal can reduce the amount of the compensatory award if it finds that the claimant’s actions caused or contributed to the dismissal. In this case, while the ET found that the claimants’ social media conduct had contributed to their dismissals, the tribunal held that it would not be just and equitable to reduce the compensatory awards, given the circumstances of the case.
Employment Appeal Tribunal (EAT)
The respondent appealed the ET’s decision, asserting that the tribunal had erred in failing to reduce the compensatory awards. The respondent argued that since the tribunal found that the claimants’ conduct contributed to their dismissals, the tribunal should have made a reduction to the award in accordance with Section 123(6).
The respondent suggested that a 10% reduction in the compensatory award would have been appropriate, given that the social media posts were deemed to be culpable and blameworthy conduct that contributed to the dismissal.
The key issue for the Employment Appeal Tribunal (EAT) was whether the ET had exercised its discretion appropriately in deciding not to reduce the compensatory awards, despite its findings of contributory conduct.
The EAT considered the grounds of the appeal and ultimately dismissed it. In its judgment, the EAT upheld the decision of the ET, agreeing that the tribunal had made the correct judgment in choosing not to reduce the compensatory awards. The EAT explained that although there was a general expectation that contributory conduct by the employee would lead to a reduction in the compensatory award, the tribunal was entitled to consider the specifics of the case and determine whether such a reduction was just and equitable.
The EAT emphasised that the ET was correct in its approach to Section 123(6), taking into account the nature of the claimants’ conduct and how it had been found to have contributed to the dismissals. The EAT noted that in this case, the conduct of the employees, while deemed blameworthy, was not the primary reason for their dismissal. Instead, it was a pretext used by the employer to dismiss employees who had made protected disclosures. The EAT therefore concluded that it was just and equitable for the ET to decide not to reduce the compensatory awards in this particular case.
The EAT further highlighted that cases involving contributory conduct are often fact-specific and require careful consideration of all circumstances. The EAT stated that the ET had correctly found that it was not appropriate to make any reductions to the compensatory awards in this case, given that the claimants’ conduct had only served as a convenient pretext for dismissals that were otherwise motivated by whistleblowing.
Takeaway Points
- Whistleblower Protection
Employees cannot be dismissed for making protected disclosures. Any conduct related to whistleblowing should not be used as a pretext for dismissal.
- Section 123(6) of the Employment Rights Act 1996
While contributory conduct may lead to a reduction in compensatory awards, the tribunal must decide if it is just and equitable to do so, considering the circumstances.
- Tribunal Discretion
Tribunals have discretion in determining whether a reduction to the compensatory award is fair. A reduction is not automatic, even when contributory conduct is found.
- Pretext for Dismissal
Employers should be cautious about using minor misconduct (like social media posts) as a justification for dismissal if the real reason is related to whistleblowing.
- Case-Specific Decisions
Employment Tribunals must consider the unique facts of each case and may decide not to reduce an award if the conduct only contributed indirectly to the dismissal.
This case is important for employers and employees alike, as it underscores the protection of whistleblowers under employment law and demonstrates the complexities involved in cases of unfair dismissal and contributory conduct.
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