THE INDUSTRIAL TRIBUNALS  

CASE REF:    2254/12

CLAIMANT:		Stephen Irwin

RESPONDENT:	Charles Hurst Limited

DECISION  

a)	The unanimous decision of the tribunal is that the claimant was unfairly dismissed. 

b)	The tribunal refuses to order reinstatement or re-engagement.

c)	The tribunal orders the respondent to pay the claimant compensation in the sum of £1,566.16.

Constitution of Tribunal:

Chairman	Ms J Knight

Members:	Mrs E Armstrong
                	Mrs M Heaney

Appearances:

The claimant was represented by Mr Neil Richards, Barrister-at-Law, instructed by Haugheys Solicitors.

The respondent was represented by Ms Rosemary Lundy of Arthur Cox Solicitors.

ISSUES

1.	The issues to be determined by the tribunal were:

a)	Was the claimant unfairly dismissed?

b)	If the dismissal was unfair, what is the appropriate remedy?

EVIDENCE

2.	Mr Gary Pickering, Mr Jeff McCartney and Mr Richard Stinson gave evidence on behalf of the respondent and the claimant, Mr Stephen Irwin, gave evidence on his own behalf.  The tribunal also considered documentation to which it was referred during the hearing.

FINDINGS OF FACT

3.	The tribunal found the following relevant facts to be proven on a balance of probabilities:

BACKGROUND

4.	The claimant, Stephen Irwin, was employed by the respondent as a Parts Adviser in its Vauxhall franchise in Lisburn, for almost 22 years until his dismissal for gross misconduct, effective on 26 September 2012.  At the effective date of dismissal the claimant was 52 years old.  The respondent is part of the Lookers Motor Group.  The claimant’s line manager was a Mr Cyril Morrison.

5.	The claimant had a Facebook page under the name ‘Stephen “Skin” Irwin’ on which he posted messages and comments to his Facebook “friends and family”.  This activity was carried out by the claimant on his home computer and in his own time.

6.	On 7 September 2012 a Mr Brian Donnelly, a customer of the respondent, telephoned Mr Gary Pickering, the General Aftersales Manager, Vauxhall, to complain about comments posted by the claimant on Facebook about a collie dog named Cody which was seriously injured and eventually died after being set on fire by youths in Maghaberry.  A Facebook page called “Justice for Cody” (JFC) was set up by the family which owned Cody which attracted widespread support in the Facebook community inside and outside Northern Ireland.  Mr Donnelly was himself a friend of the JFC page.  On 6 September 2012 he saw the comment, ““IT’S ONLY A FECKING DOG”” which had been posted by the claimant on the JFC page.  A number of comments posted on the JFC page expressed disapproval at this comment, including “Not sure there’s any room for you here, Stephen!  You’re entitled to your opinion but it’s NOT appropriate to force it on others with the sole aim of hurting!  Give it up for god sake!”.  Mr Donnelly was able to follow the link from the claimant’s comment to his Facebook page, where he was able to see other comments relating to Cody posted by the claimant and his friends, which he found offensive.  Mr Donnelly could see from the claimant’s Facebook profile that he was employed by the respondent.  As a consequence of the claimant’s posts he contemplated cancelling an order he had placed with the respondent for a new Astra.

7.	The comments on the claimant’s page to which he objected included:-

		“ok ok...enough about this fecking dog....worse things happen to people on a daily basis and we don’t hear half this fecking crying..i know it was wrong but give it a rest and get your priorities right”.

	A picture of a dead Korean dog on a barbeque which the claimant had downloaded from Google to his page and “liked” and posted the comment: “cody...count yourself lucky you don’t live in Korea”.

		“how do you turn a cat into a dog – cover it in petrol, light a match and .  ...woof”.

		“2 Koreans having a barbeque” which elicited the response from his brother “Maybe it was the travelling Koreans that tried to bbq Cody”

		“So a dog gets killed in magaberry (sic) .. tourist shot in france and a 4 year old...”

	Other responses were posted by some of the claimant’s Facebook friends, some of which were disapproving of the claimant’s comments, others responding in kind.

8.	Mr Donnelly followed up with an email to Mr Pickering attaching screenshots of the offending comments and images posted by the claimant, in which he stated:-

		“I am certain that throughout today other people will be raising complaints with you over this matter as this has caused a lot of anger and annoyance within the “Justice for Cody” group on Facebook ...Some of those who have supported the family and their children through this tragic event (51,000 people and counting) have been posting comments targeted at Charles Hurst and especially the Lisburn branch condemning Steve Irwin’s comments and his association with Vauxhall.

		I hope Charles Hurst Vauxhall will implement disciplinary proceedings against this employee and advise him to issue an apology to the family for his hurtful comments and the anger he has caused.  I would recommend you ask Steve Irwin to donate towards the dogs’ (sic) recovery rather than waste time and effort creating hate mail and stress for those already suffering.”

9.	Afterwards Mr Pickering received two or three telephone calls later the same day complaining about the claimant’s comments.  He did not record any details of these complaints.  Three further emails were received by the respondent from a Mrs Sharon Bridges, a Miss Hannah Bridges and a Mr Samuel Bridges, later that afternoon through its website, which were forwarded to Mr Pickering at 14.57, 15.52 and 15.54 respectively.  At the time Mr Pickering noted that the senders had the same family name and had the same postal address although he did not at the time consider whether there could be any connection between the senders. 

10.	These emails called on the respondent to take disciplinary action against the claimant for his comments, stating that they would not do business and would urge others not to have dealings with the respondent as a consequence of the claimant’s comments, which brought the whole name and ethos of the company into disrepute.  Mrs Bridges suggested that she was due to change her car in 18 months time and had been considering buying an Astra but would not be doing any business with the respondent.  The email from Samuel Bridges in particular was expressed in extremely pejorative terms.  He stated that he had been about to buy a car from the respondent but had decided to take his business elsewhere, having seen the claimant’s comments and that, “I suggest you sack that disgusting excuse of a human being before you loose (sic) more customers.  Here’s a link to that disgusting bastard’s Facebook page.  I recommend that you look at it and I can guarantee that you will agree with me.  I would like a response.  If you ignore me it’s only going to get worse.”

11.	The respondent went onto the JFC page made on 7 September 2012 and made screenshots of several other postings by Mr Donnelly and others concerning the claimant’s comments.  Mr Donnelly posted that the claimant worked at Charles Hurst, and that he had spoken with the claimant’s manager who he said was really annoyed and gave Mr Pickering’s telephone number and urged others to contact the respondent in order to “get the idiot disciplined”.  He stated that he intended to cancel an order for a car he had placed with the respondent.  He suggested that the Nolan show might “get in on the act”.  In another post he said “I recommend phoning head office and asking for senior management.  If enough people ring they have to deal with him.  He associated himself with vauxhall and Charles Hurst.  Am sure Vauxhall wouldn’t approve of his comments either.  Might place a call at lunch time.  Emailed the Nolan show too with pictures”.  Mrs Bridges posted that she intended to telephone Mr Pickering, that her eldest son and husband also intended to complain and that she was sure her daughter would also complain.  She later stated her intention to send an email and that she had been considering buying an Astra but it would not be through the respondent.  Mrs Bridges posted that the claimant’s address and telephone number were on his profile to which Mr Donnelly posted “Keep it legal”.

12.	The respondent also looked at the claimant’s Facebook page.  On his Profile page the claimant had stated that he was “Parts Consultant at charles hurst vauxhall” and his profile picture was of himself wearing a Northern Ireland national football team shirt.  His profile background picture was the Ulster Banner flag.

13.	Mr Pickering considered that these matters could have serious implications for the reputation of the respondent and contacted the HR department for advice.  A decision was made on 7 September 2012 to suspend the claimant from work on full pay pending further investigation for alleged inappropriate conduct through social media.

INVESTIGATORY MEETING

14.	The investigatory meeting took place on 14 September 2012 and was chaired by Mr Pickering.  Mrs Rosemary Chapman, HR adviser was present to take notes.  It was explained to the claimant that this was a fact finding meeting into his conduct through social media.

15.	The claimant informed Mr Pickering that he had opened his Facebook account approximately two or three years ago.  He thought that his settings were private and could only be accessed by his family and friends but mistakenly he had set it up as public so anyone could access his page, not just his friends and family.  Six months previously he had added the name of his employer and occupation to his Profile page.  This was because at that stage he was prompted by Facebook to add information to his Profile.  The claimant advised that he had closed his Facebook account following his suspension on the advice of friends and family.

16.	The claimant stated that his posts about Cody the dog were in the context of a conversation on Facebook with a friend to the effect that the dog was getting too much publicity on Facebook.  His view was that worse things were happening in the world such as people dying in Africa.  He said he did not condone what had happened to the dog and he hoped the perpetrators were brought to book but every time you turned around there was a photo of the dog. 

17.	When asked if he knew why customers were contacting the respondent about his comments, the claimant responded it was because he had put his employer’s name on his Profile, otherwise they would not have known who he worked for, unless they were his friends.  

18.	Mr Pickering discussed the email and attached images from Mr Donnelly with the claimant and that he had received telephone calls throughout the day from members of the public and three other emails from various people.  Mr Pickering read out the contents of the three emails, without disclosing the names of the senders to the claimant who had declined Mr Pickering’s offer to read them.  He showed the claimant the screenshots of the other comments on the JFC page.  Mr Pickering told the claimant of his concern that existing and potential business and the reputation of respondent were being put at risk because people were associating the claimant’s comments with the respondent and were saying that they were not going to do business with the respondent.  The claimant did not have any comment to make in relation to this.

19.	He stated that he had not received a copy of the respondent’s Handbook setting out the Codes of Conduct but confirmed that he had received a letter from Mr Cyril Morrison dated 25 January 2011.  Just prior to that date the claimant had tendered his resignation following an incident with another employee.  The respondent agreed to his subsequent request to withdraw his resignation and his line manager, Mr Morrison had written to him enclosing Sections 2.1 and 2.2 of the respondent’s Code of Conduct and an extract from Harassment and Bullying Code of Conduct.  The claimant was advised to read the Code of Conduct and to ensure that he complied with it.  He was informed that the letter was a reminder to him of the standard of personal conduct expected of all employees.

20.	Mr Pickering raised with the claimant the flag used as his Profile picture on his Facebook page.  The claimant confirmed that he was aware of the respondent’s Equal Opportunities policy and that he was aware that behaviour off duty could impact on the company’s image.  He stated that he had already removed the reference to the respondent from his Facebook page on 7 September 2012 after he was suspended.  The claimant did not see anything wrong with displaying “the flag of his country” on his profile and that the Loyalist icon was a Facebook page that he had “liked”. 

21.	The claimant informed Mr Pickering that he was “sorry it ever happened.  He was sorry he went near Facebook but that was irrelevant now.”  He requested and was given a copy of the screenshots that referred to his name and phone number being on his Profile which he saw as a threat to himself and his family.  He informed Mr Pickering that someone had telephoned his home but had hung up when his mother answered.

DISCIPLINARY CHARGES

22.	Following this meeting Mr Pickering decided that disciplinary charges were warranted against the claimant.  His view was that the claimant’s actions were being linked to the respondent because he had stated the name of his employer on his Facebook profile and were capable of harming the business interests and reputation of the respondent.

23.	The claimant was invited to a disciplinary hearing on 26 September 2012 to discuss allegations of gross misconduct which were set out in the letter of invitation as follows:-

	“-Serious breach of Company Rules, Policies, Procedures or Instructions 
	-Conduct liable to be detrimental to the Company’s business interests/Reputation”.

	It was “alleged through social media you have breached Section 2 of the Employee Handbook (Code of Conduct) whereby you have failed to ensure that your conduct whilst off duty does not impact on the company”.  Specific reference was made to Mr Donnelly’s complaint about the claimant on 7 September and Mr Donnelly’s comments on Facebook that he would be ringing to cancel his order for a new Astra from Charles Hurst; that “he wouldn’t be buying anything from Charles Hurst whilst ‘scum like Steve work there’ and that he had “made contact with the Nolan show about the matter”.  Further reference was made to other comments posted on Facebook about the claimant’s association with Charles Hurst and emails “from three further people” complaining about the claimant’s conduct.

	It was further alleged that as his Facebook Profile included the Northern Ireland flag and an icon stating “The Loyalist” alongside his job title and place of work, the claimant had breached Section 8 of the Employee Handbook (Equal Opportunities Policy), in that he had failed to ensure that his standard of conduct enhanced the Company’s image as a progressive employer.

24.	The letter warned that the allegations of misconduct were liable to attract a penalty of summary dismissal and therefore a possible outcome of the meeting was that he could be summarily dismissed.  He was advised of his right to be accompanied at the meeting by a work colleague or trade union representative.

25.	Documentation was enclosed with this letter, namely the notes of the investigatory meeting, the email of Brian Donnelly dated 7 September 2012 with 8 screenshots, the three emails from the Bridges, although their names and contact details were redacted from the copies given to the claimant; five screenshots made by the respondent of the JFC page showing the further comments from Mr Donnelly and others about the claimant’s posts, Section 2 (Code of Conduct), Section 8 (Equal Opportunities Policy) and Section 12 (Disciplinary Procedure) of the Employee Handbook.

26.	Section 2 of the Code of Conduct states:

		“2.1 INTRODUCTION

		The Company expects the highest standard of conduct from all its employees.  Our business is to provide a service and we must remember that the customers are the most important people in the workplace. The Company’s reputation and integrity are of paramount importance and we cannot accept behaviour that may bring the company into disrepute.”

		CONDUCT
		Consequently, all employees are expected to behave courteously, honestly and with integrity in the course of their work and in their dealings with customers, suppliers and colleagues.  Conduct outside the workplace and whilst “off duty”, may also impact on the Company and employees should take care to ensure that the appropriate Company image is projected at all times.

		Employees are also advised that these standards apply to any Company functions, social or otherwise.  At such events employees represent the Company.  Therefore, due consideration should be given to the Company guidelines and standards, which still apply, eg: safety, substance abuse, harassment or discrimination.”

27.	The Equal Opportunities Policy, Section 8 of the Code of Conduct, prohibits employees from displaying flags and emblems in the workplace.

28.	The respondent’s Disciplinary Procedure does not specify in terms, “Conduct liable to be detrimental to the Company’s business interests/Reputation” in the list of offences likely to be regarded as gross misconduct in Appendix II of the procedure.  However a clear footnote to the disciplinary policy states, “The examples of misconduct and gross misconduct are indicative and neither exhaustive nor exclusive.  The appropriate level of action cannot be predetermined as this will vary according to the circumstances”.

29.	The respondent did not have a Social Networking policy at this time.

DISCIPLINARY MEETING

30.	The claimant attended the disciplinary meeting on 26 September 2012 which was chaired by Mr Jeff McCartney, General Manager of the Charles Hurst Renault franchise at Boucher Road.  Mrs Chapman was present to make a record of the meeting.  The claimant chose not to be accompanied.  Mr McCartney had no involvement with the prior investigation.  He had been provided with the disciplinary meeting invitation letter and the enclosed documentation, including the redacted emails.  He was therefore unaware of the identity of the senders of the emails.

31.	
The claimant was invited to respond to the allegations set out in the invitation letter to the disciplinary hearing.  He raised a number of points concerning his posts about Cody the dog which had given rise to the complaint from Mr Donnelly.  These were:-

a.	He did not consider that his comment was offensive, when regarded in context.

b.	He thought that he was talking to his friends in private.

c.	The context was that he thought that other more important things were happening in the world and he thought the dog was getting too much publicity in comparison.  He referred Mr McCartney to his post, “ok ok...enough about this fecking dog....worse things happen to people on a daily basis and we don’t hear half this fecking crying..i know it was wrong but give it a rest and get your priorities right”. 

d.	The image of the Korean dog and the cat joke had been jokes between him and his friends.

e.	He stated that he had also posted images of dying children in Africa but he had not brought these to the disciplinary hearing as he had closed his Facebook page after his suspension and the comments had been deleted.

f.	The claimant agreed with Mr McCartney that he had used the word “fecking” instead of “fucking”.  The claimant explained that he had posted the image of the Korean dog on a barbeque and joke about turning a cat into a dog as being jokes between him and his friends.

g.	The comments he posted on his own Facebook page on 30 August was the Thursday before the dog was put down at which point he understood that the dog was recovering from its injuries.

h.	He did not condone what had happened to Cody and he did not intend to cause offence by his comments.

i.	He did not intentionally post his comment “It’s ONLY A FECKING DOG” on the JFC page which he did not regard as offensive.  His explanation was that he had been messaging a friend on Facebook when the picture of Cody appeared on his page.  He thought his friend (Danielle Martin) had shared the picture with him and he posted this comment in response.  He told Mr McCartney and the tribunal that he was unaware that this comment would also be posted on the Justice for Cody site, from where the picture had originated.  At the hearing the claimant accepted that the use of capital letters on a social networking site connotes shouting.

j.	Mr Donnelly and others had trawled through his Facebook page looking for something against him and had tried to vilify him and make him out to be an animal hating thug.  He was opinionated and tells people his views and sometimes he did not put his views over in the right way.

k.	He had received threatening and abusive comments on his Facebook page and that calls had been placed on his home telephone although the caller hung up when it was answered by the claimant’s 72 year old mother.

32.	Mr McCartney discussed the screenshots of the claimant’s Profile picture showing the Northern Ireland flag and the icon entitled “The Loyalist” in the Likes section of the claimant’s profile.  The claimant’s explanation was that:-

a.	He did not think that he was doing any harm by putting it on his Facebook page.

b.	He contended that the icon did not state The Loyalist but something like “Loyali” and that it was just a page that he had liked.

c.	He was proud to state that he works for Charles Hurst Vauxhall and that he had made a stupid mistake in displaying his employer’s name.

33.	Mr McCartney adjourned the hearing to consider the claimant’s responses.  He did not accept the claimant’s assertion that he did not realise his comment “IT’S ONLY A FECKING DOG” would also be posted on the JFC page.  When the meeting reconvened he asked the claimant how he came to post the image of the Korean dog on a barbeque and another photograph showing two people together in a toilet in a Belfast nightclub.  The claimant informed him that he had googled the first image from the internet and the second had been sent to him by a friend.  Mr McCartney concluded from the claimant’s response that he was an experienced user of Facebook rather than a novice.  He did not believe the claimant’s explanation that he did not intend his comment to appear on the JFC page.

34.	Mr McCartney put to the claimant that his opinion had upset people to the point where they no longer wished to do business with the respondent.  He informed the claimant that the disciplinary hearing was not taking place because someone outside of the company had recommended that he should be disciplined but it was because of complaints from customers, which had been investigated and led to allegations of gross misconduct.  During the meeting the claimant disclosed to Mr McCartney that he had gone onto the Facebook pages of some of the people who had posted against him on the JFC page as he initially thought they may have been motivated against him on religious grounds.  However he discounted this possibility as he was able to see from the content of their pages that they were “animal rights activists and doggy lovers”.

35.	The tribunal did not believe the claimant’s evidence, either that Mr McCartney raised his voice or that he appeared a “bit upset” at him during the disciplinary hearing.

DISCIPLINARY DECISION

36.	After a further adjournment Mr McCartney informed the claimant that he had decided to issue a final written warning to the claimant for breaching section 8 of the Employee Handbook Equal Opportunities Policy whereby he failed to ensure that his conduct enhanced the company’s image as a progressive employer by displaying a flag and emblem alongside details of the employer on his Facebook page.  Mr McCartney informed the tribunal that in reaching this decision he was influenced by the fact that this was a one off and that the claimant had acted immediately to remove the flag from his Facebook page.

37.	In relation to the allegation of conduct liable to be detrimental to the company’s business interests/reputation, Mr McCartney decided summarily to dismiss the claimant because he had failed to ensure that his conduct whilst off duty did not impact on the company.  Complaints had been received about his comments which people found to be offensive to the point where they said they would no longer deal with Charles Hurst.  His view was that the claimant’s conduct had caused damage to the company’s business interests and reputation. 

38.	Mr McCartney informed the tribunal that that the claimant did not appear particularly upset at being informed that he had been dismissed and responded “No problem.  Thanks.  Cheers”.  The claimant was informed that the reasons for the decision would be confirmed to him in writing.

39.	Mr McCartney told the Tribunal that in reaching his decision he weighed up the claimant’s length of service and the potential damage to the respondent and the upset which had been caused to customers.  He considered also that the claimant’s attitude at the disciplinary meeting had been arrogant and that he had shown no remorse or recognition that he had done anything wrong.  He had upset customers and potential customers of the company and he had put the company reputation at risk.  Mr McCartney informed the tribunal that he formed the view that the claimant had intended to post his comment on the JFC page.  In making his comments about Cody and in failing to ensure that his Facebook page was private, the claimant had put the company at risk and had made no apology for his comments.  

40.	Mr McCartney told the tribunal that he had not taken into account the screen shots of subsequent postings on the JFC page by Mr Donnelly and the Bridges family which had been enclosed with the invitation to the disciplinary hearing.  He could not recall having seen these or considered them at all before making his decision.  He stated that in any event these postings would not have had a bearing on his decision as he had taken into account that over 51,000 people, who were potential customers, had liked the JFC page and could have been put off dealing with the respondent, if they had seen claimant’s comments.  He was influenced by the fact that the claimant did not bring with him any documentation to show his other comments which put his comments about Cody in context.  He did not accept that the claimant was unable to obtain this contextual evidence as even though he had closed down his own Facebook page Mr McCartney believed that the claimant would have been able to obtain screenshots of these comments from his friends.

41.	The letter confirming the claimant’s dismissal was not sent until 18 October 2012.  On 10 October 2012 the claimant wrote to the respondent requesting formal notification of the dismissal decision and the supporting paperwork, stating his intention to appeal.  Mr McCartney conceded in his cross examination that the letter of dismissal was “not worded particularly well” where he stated his finding was that the claimant’s conduct “was detrimental to the company’s business interests and reputation”, as what he had meant to say was that the claimant’s conduct could cause “potential damage” to the company’s business interests and reputation.  Amended notes of the investigatory hearing and notes of the disciplinary hearing were enclosed with this letter.  

THE APPEAL

42.	The respondent’s disciplinary policy provides for one appeal and that the decision of the manager hearing the appeal is final.  The possible grounds for appeal are:-

•	Serious procedural error which resulted in significant detriment to the employee.

•	The decision reached was unfair and unreasonable in the circumstances having regard to the nature of the allegations and any mitigating circumstances.

•	The purpose of the appeal hearing is not to rehear the case but to decide if the grounds for the appeal are justified.  The manager hearing the appeal has the right to decide whether or not to uphold the appeal, revoke or modify the original decision.

	The appeal procedure provides that if new evidence has come to light since the disciplinary hearing an adjournment at appeal might be necessary to conduct further investigation.

43.	The claimant set out his grounds for appeal in a letter which was received by the respondent on 23 October 2012.  These were that:-

a.	Not enough consideration was given to the circumstances leading up to his dismissal. 

b.	He was not completely aware of the Rules and Regulations of the company as he was never furnished with a copy of the Employees Handbook.

c.	He had not breached the Equal Opportunities Policy because his Facebook page was never displayed in the workplace and therefore he had not breached any company policy.

d.	It was against his human rights to be punished for reading a political publication.

e.	His comments about Cody the dog had been taken out of the context of the whole conversation.

f.	The people who had complained about him had deliberately entered his Facebook page to trawl for statements they might find offensive.

g.	He had been a good, loyal and hardworking employee for over 21 years and was proud to say he worked for Charles Hurst Vauxhall.

44.	Mr Michael Sidebottom of the Human Resources Department in the Head office in Manchester wrote to the claimant to advise him that arrangements had been made for his appeal to be heard by Mr Richard Stinson, Franchise Director of Specialist Cars, on 16 November 2012.  The claimant was advised to bring with him to the appeal any supporting evidence and that he would be given an opportunity to set out in detail why he was appealing.  The claimant was advised of his right to be accompanied by a work colleague or Trade Union representative.

45.	The claimant attended at the appeal hearing which was chaired by Mr Stinson and again chose not to be accompanied.  Miss Chapman was also present to take notes.  The points raised by the claimant at this meeting may be summarised as follows:-

a.	The decision to dismiss him was “a bit harsh”.

b.	He had 22 years service and had always done his best for the company.  

c.	He had not been supplied with the company’s policies and did not receive the handbook, consequently he did not fully understand how by identifying his employer on his Facebook profile, he could be bringing the respondent into disrepute.  He confirmed to Mr Stinson that he now understood that his conduct when out of work could have an impact on the respondent.  The claimant confirmed that he had received the letter which had been sent to him in January 2011 but he stated that this was 20 months before the present incident and that the company’s disciplinary procedure provided that a first written warning should be disregarded after 12 months.  The claimant confirmed that he had read at the time the enclosed extracts from the Company Handbook but could not recall the contents.  The claimant confirmed that he had access to the intranet in work but suggested that he did not use this.  

d.	The respondent did not have a Social Network policy when he had posted his comments and images on Facebook.  Since his dismissal he understood that a Social Network policy had been introduced.

e.	That he had communicated with Mr Donnelly on Facebook who had informed him that he had not cancelled his order and had in fact purchased a car from the respondent.  Mr Donnelly also advised the claimant that he had been in touch with Mr Pickering to ask him to be reinstated.

f.	Mr Donnelly had incited people to complain to the respondent about the claimant.  He suggested that there were only four emails and some phone calls.

g.	He had not deliberately posted the comment on the JFC page and did not intend to cause offence.  He mistakenly thought that his other comments on his own Facebook page were private.

h.	He accepted that he should have been disciplined for his posts about Cody the dog but that there should have been a lesser penalty than summary dismissal.
i.	
He questioned why he had been disciplined for displaying the flag on his Facebook page when none of the people who had phoned in to complain about him had mentioned this.  The display of the flag on his profile picture had been raised for the first time after the investigatory hearing with Mr Pickering and was a breach of his human rights.  The claimant suggested that Charles Hurst Vauxhall was a sponsor to the Northern Ireland football team and showed the Northern Ireland flag on their own website.

j.	The claimant informed Mr Stinson that the fact that he had been disciplined for flying the Northern Ireland flag had caused a public outcry and that Facebook pages had been set up shortly after his dismissal entitled “Boycott Charles Hurst” (BCH) and “Get Skin Reinstated” (GSR), which had nothing to do with him.

46.	The GSR and BCH pages were created shortly after the claimant’s dismissal, the former on 26 September 2012.  The impression given on these pages was that the claimant had been dismissed for displaying a loyalist flag on his Facebook page.  Comments were made by the administrator urging people to post on Charles Hurst Facebook page and to google Charles Hurst Lisburn and forward messages in support of the claimant on the enquiry form.  It also commented on “great idea from Nigel Irwin (the claimant’s brother) everyone change their place of work to Charles Hurst”.

47.	At the end of the appeal meeting Mr Stinson informed the claimant that he wished to review his notes and speak to people as appropriate before issuing his decision.  The tribunal did not accept the claimant’s evidence that Mr Stinson informed him that “life goes on” and behaved as if he did not want to be there.

48.	The respondent wrote to the claimant on 6 December 2012 to invite him to a further appeal meeting on 10 December 2012 to discuss further information which had come to light concerning his suspected Facebook activity since his dismissal that Mr Stinson believed may be relevant to his dismissal appeal and in particular to his grounds of mitigation.

49.	The claimant was advised that it was brought to the respondent’s attention that since his dismissal he appeared to have been actively involved in the BCH and GSR pages.  It was also stated that the respondent “understands that you and possible acquaintances of yours have been in contact with one or more of the customers (who initially contacted the company about your comments on Facebook) and that the contact they have received has included threats against them”.  Enclosed with the letter were screen shots from the GSR page showing posts apparently by the claimant and an email sent by the claimant to Facebook regarding the BCH site which said “Hi I was on a facebook page called Boycott Charles Hurst Vauxhall on Thursday 1st November.  The topic is to do with me losing my job and as I was getting to the truth of the matter someone reported it as spam and it was deleted by Facebook.  I was not involved with so called threats but was having a conversation with a Mr Brian Donnelly.  This is the key to me losing my job and just as I had gotten to the truth the thread was closed.   Please could you re-open it or send me a copy of the last 10 comments as this could help me get my job back”.   It was stated that these matters were not being raised as additional disciplinary offences but that Mr Stinson felt that they may impact on the appeal decision and therefore wished to carry out further investigation and to give the claimant an opportunity to discuss them.  

50.	On 7 December 2012 the claimant contacted the Human Resources Department concerning the letter.  He objected to the allegation that he or his acquaintances had threatened the people who initially complained to the respondent about his comments on Facebook.  He also requested copies of any information or evidence that the respondent had received in order to support any such allegations.  Mr Sidebottom responded to the claimant by an email of the same date.  He re-issued the letter of invitation to the reconvened appeal hearing deleting the sentence which was objected to by the claimant.  He attached a further copy of the email from the claimant to Facebook.  Mr Sidebottom stated that other information would be kept confidential at this time as the individuals had expressed concern that their involvement has left them feeling intimidated.  The claimant was assured that he would not be asked to comment on any allegations as this was not a further disciplinary hearing but he would only be asked what actions he had or had not taken since dismissal.  

51.	The information withheld from the claimant comprised emails from Mrs Sharon Bridges on 30 October 2012 and Mr Brian Donnelly on 7 November 2012 and an anonymous letter dated 30 November 2011.  Mrs Bridges complained to the respondent that she and her son had been under fire from supporters of the claimant who blamed her for the claimant’s dismissal and that she had reported these comments to the police.  She also stated that the claimant had set up the GSR and BCH pages and derogatory comments were being made about the respondent.  Mr Sidebottom spoke with Mrs Bridges by telephone on 6 December 2012 and she advised that she had received approximately 30 comments from the claimant’s supporters on her page, although they were careful not to make direct threats and that she had reported the matter to the police who had not seemed interested.  Mr Donnelly expressed concern in his email to Mr Pickering that the respondent had given a copy of his previous email to the claimant.  He complained that the claimant had been emailing him via his private Facebook page.  He referred also to the BCH and GSR pages and suggested that the claimant’s supporters were saying that the reason for his dismissal was because he had displayed the Northern Ireland flag and not because of his comments about Cody.  The author of the anonymous letter also referred to the claimant’s involvement in the BCH and GSR pages and expressed support for the respondent in dismissing him, and hoped that he would lose his case.  Mr Stinson had no specific recollection of this material although he told the tribunal that from the record of his questions at the reconvened appeal hearing he thought it was likely that he was provided with copies of this information.

52.	At the reconvened appeal hearing on 10 December 2012, the claimant denied that he had created the GSR and BCH Facebook pages.  He stated they were nothing to do with him and he did not know the identity of the administrator of these pages.  He admitted initially posting two comments on the GSR page which were “Hi folks sitting here getting ready for my appeal tomorrow” and “Anyone know a good employment solicitor”.  The claimant further admitted, during the appeal hearing, that he had made “tens of comments” on the GSR page.  

53.	The claimant denied posting on the GSR site on 20 October 2012 “Hi folks just received my paperwork regarding my sacking.  Someone must have flown over from Manchester and posted it in Belfast because it had a Belfast postmark on it.  Once again they have said that the placing of the Northern Ireland flag on facebook is a breach of company policy.  Also that I am not allowed to have an opinion in case someone objects to it and complains to them.  Now I will have to start proceedings for my appeal.  Once again a big thank you for all your support and don’t forget to register your like for the Get Skin reinstated page…..”.  The claimant’s case was that the first part of the post had been copied from his own Facebook page by the GSR administrator who had added their own piece at the bottom.  He confirmed that this would have been one of his Facebook friends because his page was now on a private setting and only his friends and family could see it.  He confirmed that he approved of the Get Skin reinstated website and that if people wanted to show that they were unhappy with how the respondent had treated him they were “quite within their rights to do that”.

54.	The claimant further denied that he had created the BCH page or that he knew who had.  He informed Mr Stinson that he had gone on the BCH site to defend himself against comments which were being made against him by Mr Donnelly and others including Mrs Bridges and Samuel Bridges.  He had discovered that these comments were being made about him when he was on his own Facebook page and he became aware of activity.  He suggested that Mr Donnelly had rallied people against him and falsely accused the claimant of making threats against him.  He told Mr Stinson that he had received a threat from Samuel Bridges which he had reported to the police.  He stated that these were not reasonable people  -  they had similarly targeted employees of Centra and Tesco pushing for them to get the sack from their employment and they had ruined his life.  He stated he had never denied posting on the JFC page about the dog but these people took it out of context and lifted bits out.  There had been nothing vile or offensive about it.  The claimant gave Mr Stinson screenshots of the postings to which he referred. 

55.	Mr Stinson reviewed the minutes of the meeting and the claimant’s submissions.  He spoke to Mr McCartney about his rationale for dismissing the claimant.  He also spoke with Mr Pickering.

56.	Mr Stinson wrote to the claimant on 15 January 2013 informing him that his appeal was not upheld.  His findings were that:-

a.	He was satisfied that the claimant had been aware of Sections 2 and 8 of the Company’s Code of Conduct.  

b.	In relation to the claimant’s assertion that the company had no social network policy but that he believed that one had been brought in afterwards, Mr Stinson found that the reasons for the claimant’s dismissal as set out in Mr McCartney’s letter of 18 October did not relate to a company social network policy.  

c.	Mr Stinson found that the claimant was promoting his affiliation to Charles Hurst on his open Facebook profile and therefore his association with the company was evident through the social media.  The claimant had confirmed his awareness that his behaviour when off duty may impact on the respondent’s image and that individuals (customers external to the business) complained to the respondent about the comments and threatened to withdraw their business from Charles Hurst as a result.  Therefore they clearly felt there was an association between the claimant and the company. 

d.	Mr Stinson found that on reviewing the evidence that it was reasonable to conclude that the claimant was not punished for reading a political publication (the Loyalist).  The concern raised at the disciplinary hearing was that the claimant’s association was evident on his Facebook profile and his conduct (displaying the NI Flag) became linked with the respondent in this way.

e.	In relation to the claimant’s contention that the individuals concerned had deliberately entered his Facebook page to look for comments to complain about and that his comments were taken out of context, Mr Stinson felt irrespective of when Mr Donnelly became aware of his comments and at what point he became offended the fact remains that he felt the need to write into Charles Hurst to make a complaint along with the other complainants.  He found it reasonable to conclude that all the relevant evidence was considered and the allegations were discussed with the claimant before a decision was made to dismiss him.  

f.	In response to the claimant’s point that he was a hard working and loyal employee, Mr Stinson stated in his letter that “when reviewing the evidence I find it reasonable to conclude that the decision to dismiss you was a reasonable sanction when I consider your length of service and employment record”.

g.	Mr Stinson stated that whilst it may have been the case that Mr Donnelly did not cancel his business and subsequently got in touch with Gary Pickering asking for the claimant to be reinstated, at the point of dismissal, Mr McCartney made a decision based on the evidence available to him.  Mr Stinson also felt that even if Mr Donnelly expressed a subsequent view that he did not think the claimant should have been dismissed, it is for the company to determine the appropriate sanction and he did not believe this made the decision to dismiss the claimant an unreasonable one.  

h.	Mr Stinson stated that he did not believe that Vauxhall sponsoring a Northern Ireland football team or displaying a Northern Ireland flag on their website was relevant to the reason for the claimant’s dismissal which was set out in Mr McCartney’s letter of 18 October 2012.  

i.	Overall Mr Stinson felt that consideration was given to the relevant evidence and that the decision to dismiss was reasonable and fair under the circumstances.  

57.	Mr Stinson referred to the claimant’s activity on the BCH and GSR  pages and the allegations that the claimant and possible acquaintances of his had been in contact with one or more of the customers who had initially contacted the company about his comments on Facebook and that this alleged activity caused the individuals to feel intimidated.
58.	
In relation to the GSR page he considered that the claimant had endorsed the existence and content of this page, which was clearly about him and linked to the respondent, by liking it and posting comments on it.  A number of comments on the GSR page encouraged others to have a negative view of the respondent.  Mr Stinson in considering the information given to him by the claimant at the reconvened appeal hearing concluded that he found it surprising the claimant was actively involved in a Facebook page such as this which directly linked him to the company and depicted the company in a very negative light.  He concluded that the GSR page was clearly going to be detrimental to the company’s business interests and reputation.  He requested that the claimant should contact the administrator to close it immediately.  

59.	Mr Stinson informed the claimant that as the BCH page had been closed down he had been personally unable to review it.  He confirmed that he had taken into consideration what the claimant had told him about the contact he had also received from customers but he requested that the claimant and his acquaintances should not make any further contact with these individuals.  

	Although these were not dealt with as additional disciplinary matters Mr Stinson concluded that they provided further evidence that the claimant appeared to have had no remorse for his original actions taken by him in relation to this matter and therefore decided to uphold the decision to dismiss. 

60.	Mr Stinson conceded that he did not understand how Facebook works and had not looked into this before conducting the appeal.  Mr Stinson told the tribunal that he had found to be genuine the claimant’s explanation that he did not intend his comment to end up on the JFC page.  His view was that the claimant knew more than he was telling him about the GSR and BCH pages.  Mr Stinson told the tribunal that he felt “slightly sympathetic” towards the claimant as he was able to see that some very negative comments had been posted about him on the BCH page.  These were in posts that the claimant had brought to the appeal hearing.  In making his decision Mr Stinson stated that he took into account that it appeared that there was a campaign against the claimant.  He could not recall whether he had seen the posts on the JFC page about the claimant’s comments about Cody and he did not pick up on the fact that the three emails had been sent by the members of the Bridges family.  He expressed the view that if the claimant had made an apology on Facebook this may have influenced the outcome of the appeal in his favour.  He did not think it appropriate to suggest to the claimant, as an adult responsible for his own actions that he should apologise.  He considered that the claimant’s behaviour in the intervening period on the GSR and BCH pages which put the company in a negative light, undermined his stated wish that he genuinely wanted his job back and he questioned whether this was the sort of person that the respondent wished to employ.

61.	The claimant had lodged his originating claim on 8 November 2011 prior to the appeal hearing following advice from the Labour Relations Agency.  He claimed that he had been unfairly dismissed and sought the remedy of reinstatement.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

62.	It was submitted on behalf of the respondent that the claimant had been dismissed for gross misconduct namely serious breach of section 2 of the Employee Code of Conduct in failing to ensure his conduct while off duty did not impact on the company and in engaging in conduct liable to the company’s business interests/ reputation.  Notwithstanding the absence of a social media policy the claimant using common sense ought to have known that his behaviour in posting his comments on Facebook about Cody the dog was unacceptable given that he was an experienced Facebook user.  The claimant had caused actual or potential damage to the respondent’s business and reputation for which he had expressed no remorse and he continued to engage in activity designed to damage the respondent’s business after his dismissal.  It was further submitted that the respondent had a genuine belief that the claimant had committed acts of gross misconduct; that it had reasonable grounds for that belief and had carried out a fair and thorough investigation and that dismissal was a fair sanction in all the circumstances.  In the event that the claimant’s dismissal is found to be unfair, it was submitted that the claimant should not be reinstated or awarded any compensation as there was a 100% contribution by the claimant to his own dismissal due to his conduct.

SUBMISSIONS ON BEHALF OF THE CLAIMANT

63.	It was submitted on behalf of the claimant that the respondent in dismissing the claimant had acted outside the band of reasonable responses in the absence of a social media policy that there was nothing in the respondent’s disciplinary rules and policies from which a reasonable employee might appreciate he would risk dismissal by posting non work related material on his personal Facebook page at home; that there was insufficient evidence to support a reasonable belief that the claimant had engaged in conduct liable to to be detrimental to the respondent’s business interests/reputation and that the respondent had in fact found the claimant guilty of causing actual detriment; in making this finding the respondent had ignored that there was a cynical campaign against the claimant; that a reasonable reader would not have attributed the claimant’s comments to the respondent or think worse of the respondent because of them; that there was a perfunctory appeal process which rubberstamped the original appeal and took into account post dismissal conduct; that the respondent failed properly to consider mitigating circumstances and that the sanction of dismissal was too harsh, was inconsistent when viewed against the final written warning imposed for the “flag offence” and was therefore outside the band of reasonable responses; further that Article 10 (right to freedom of expression) was engaged and that the sanction of dismissal was disproportionate.  It was submitted that reinstatement was the appropriate remedy.  It was conceded that the claimant had contributed somewhat to his dismissal but only to a small degree.

LAW

64.	An employee has a right not to be unfairly dismissed by his employer.  Article 130(1) of the Employment Rights Northern Ireland Order 1996 provides:-

		“In determining for the purposes of this part whether the dismissal of an employee is fair or unfair it is for the employer to show:-

		(a) 	the reasons (or if more than one the principal reasons) for the dismissal, and

		(b)	that it either a reason falling within paragraph 2 or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”

65.	Article 130 (2) provides:-

		“A reason falls within this paragraph if it – 

		(b)	relates to the conduct of the employee.”

66.	Article 130 (4) provides:-

		“where the employee has fulfilled the requirement for paragraph one, the determination of the question whether the dismissal is fair or unfair, having regard to the reason shown by the employer:-

(a)	depends on whether the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and 

(b)	shall be determined in accordance with equity and the substantial merits of the case.”

67.	Article 130A(2) inserted into the 1996 Order by Article 23(2) of the Employment (Northern Ireland) Order 2003 (the 2003 Order), provides that:-

	“Subject to paragraph(1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purpose of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure”.

68.	The statutory dispute resolution procedures prescribed by the 2003 Order and set out in Schedule 1, part 1 of the 2003 Order apply in this case.  Where an employer fails to comply with the 3 step statutory dismissal procedure, a dismissal is rendered automatically unfair.

69.	In Rogan v South Eastern Health and Social Care Trust (2009) NICA 47 the Court of Appeal of Northern Ireland stated at paragraph 21:  “The test for whether the dismissal was fair or unfair is set out in article 130 of the Employment Rights (Northern Ireland) Order 1996 but in misconduct cases it is generally helpful to follow the remarks of Arnold J in British Home Stores.  It is for the employer to establish the belief in the particular misconduct.  The tribunal must then consider whether the employer had reasonable grounds upon which to sustain the belief and thirdly whether the employer had carried out as much investigation into the matter as was reasonable in all circumstances.  The tribunal must also, of course, consider whether the misconduct in question was a sufficient reason for dismissing the employee...”  In paragraph 26 of its judgment, the Court of Appeal makes it clear that judgment as to the weight to be given to the evidence is for the disciplinary panel and not for the tribunal.

70.	In British Homes Stores v Burchell [1980] ICR 303 Arnold J described the task of the tribunal as follows:  “What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  First of all, there must be established by the employer the fact of that belief.  Secondly, that the employer had reasonable grounds for that belief.  And thirdly that the employer had carried out as much investigation into the matter as was reasonable in the circumstances of the case”.

71.	The leading case on the application of Article 130(4) of the 1996 Order is Iceland Frozen Foods  v  Jones 1982 IRLR 439 EAT in which Browne-Wilkinson J stated that “the correct approach for the industrial tribunal to adopt in answering the question posed by [Article 130(4) of the Order] is as follows:-

	i.	the starting point should always be the words of [Article 130 (4)] themselves of the employer’s conduct, not simply whether they consider the dismissal to be fair;

	ii.	in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they consider the dismissal to be fair;

	iii.	in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

	iv.	in many, though not all cases where there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another employer might quite reasonably take another;

	v.	the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band, the dismissal is fair; if the dismissal falls outside the band, it is unfair.”

72.	In the case of Sainsbury’s Supermarkets Ltd  v  Hitt 2003 IRLR 23, the Court of Appeal stated that it was not for the tribunal to substitute its own view for that of the employer.  The Court of Appeal stated as follows:-

		“The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason”.

73.	In assessing fairness the employer cannot be the final arbiter of its own conduct in dismissing an employee.  It is for the tribunal to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable responses open to an employer.  Bowater  v  Northwest London Hospitals NHS Trust [2011] 331.

74.	In determining whether a dismissal is fair or unfair the tribunal cannot have regard to matters of which the employer was unaware at the time of dismissal and which, therefore could not have formed part of his reason for dismissing the employee.  However the case of West Midlands Cooperative Society Limited  v  Tipton, provides authority for the proposition that there is nothing in the language of the statute to exclude from determination of the question of reasonableness, evidence which becomes available for consideration by the employer during an appeal held pursuant to a disciplinary procedure.  In that case, the House of Lords ruled that to “separate them (the disciplinary hearing and the appeal hearing) and to consider only one half of the process in determining whether the employer acted reasonably or unreasonably in treating his real reason for dismissal as sufficient is to introduce unnecessary artificiality into proceedings on a claim of unfair dismissal calculated to defeat rather than to accord with the equity and substantial merits of the case” and for which the language of the statute affords no warrant”.

75.	In deciding whether dismissal is a fair sanction it is not for the tribunal to substitute its own view of the appropriate penalty for that of the employer.

76.	Article 10, Schedule 1, Human Rights Act 1998 provides that:-

i.	Everyone has the right to freedom of expression.  This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.  This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

ii.	The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of other, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.
77.	
In X  v  Y [2004] EWCA Civ 662, [2004] IRLR 625 the Court of Appeal held that an (employment) tribunal is required to give effect to convention rights (including Article 10) when applying (Article 130(4)) of the 1996 Order.  There is no justification as to why employees in the private sector should not enjoy Convention rights in the context of unfair dismissal.  The following guidance was issued by Mummery LJ:-

		“Whenever HRA points are raised in unfair dismissal cases, an employment tribunal should properly consider their relevance, dealing with them in a structured way, even if it is ultimately decided that they do not affect the outcome of the unfair dismissal claim.  The following framework was suggested:-

(1)	Do the circumstances of the dismissal fall within the ambit or one or more of the articles of the Convention?  If they do not, the Convention right is not engaged and need not be considered.

(2)	If they do, does the state have a positive obligation to secure enjoyment of the relevant Convention right between private persons?  If it does not, the Convention right is unlikely to affect the outcome of an unfair dismissal claim against a private employer.

(3)	If it does, is the interference with the employee’s Convention right by dismissal justified?  If it is, proceed to (5) below.

(4)	If it is not, was there a permissible reason for the dismissal under the ERA 1996, which does not involve unjustified interference with a Convention right?  If there was not, the dismissal will be unfair for the absence of a permissible reason to justify it.

(5)	If there was, is the dismissal fair, tested by the provisions of ERA 1996 S98, reading and giving effect to them under HRA 1998 s3 so as to be compatible with the Convention right?”

78.	The tribunal was referred by the parties representatives to the following legal authorities: British Home Stores  v  Burchell  [1980] ICR 303; Singh  v  London Country Bus Services Limited [1976] IRLR 176; Jones  v  Tower Boot Company Limited [1997] ICR 254; Chief Constable of Lincolnshire Police  v  Stubbs [1999] ICR 547; West Midlands Cooperative Society Limited  v  Tipton [1986] ICR 192; Pay  v  United Kingdom [2009] 48 EHRR SE2; Ingram  v  Bristol Street Parts EAT 601/06; Port of London Authority  v  Payne [1992] IRLR 447; Coleman  v  Magnet Joinery Limited [1974] IRLR 343; Nothman  v  London Borough of Barnett (No. 2) [1980] IRLR 65; Central and North West London NHS Foundation Trust  v  Abimbola UKEAT/0542/08;  Mabirizi  v  National Hospital for Nervous Disease UKEAT [1990] IRLR 133; Antrim Borough Council  v  Malachy McCann [2013] NICA 7; Bowater  v  Northwest London Hospitals NHS Trust 2011 [IRLR] 331; W Brooks & Son  v  Skinner [1984] 375; Strouthos  v  London Underground Ltd [2004] 636; X  v  Y [2004] IRLR 625; Smith  v  Trafford Housing Trust [2013] IRLR 86; Linfood Cash & Carry Ltd  v  Thomson [1989] IRLR 235; Taylor  v  OCS Group Ltd [2006] 613; London Borough of Islington  v  Mrs M Collins EAT 3/99 and Morrison  v  Amalgamated Transport and General Workers Union [1989] IRLR 36.

CONCLUSIONS 

79.	The respondent has complied with the statutory Disciplinary and Dismissal procedures in the present case therefore there is not an automatically unfair dismissal.  The respondent, as is conceded on behalf of the claimant, has further discharged its burden of showing on a balance of probabilities that the reason for the claimant’s dismissal was conduct, which is a potentially fair reason.

80.	The issue for the tribunal is whether in all the circumstances the respondent acted reasonably or unreasonably in treating this as a sufficient reason to dismiss the claimant.

81.	It was submitted, relying on the judgment in Smith  v  Trafford Housing Association [2012] EWHC 3221 that the claimant’s postings which were non work related and made in his own time could not amount to misconduct.  The claimant was entitled to express his lawful opinion no matter how unattractive.  In Smith, the plaintiff posted on his personal Facebook page, which could be accessed by “friends of friends,” that gay marriage was “an equality too far” on which he identified his employer on his profile.  He was demoted for serious breaches of the equal opportunities policy and Code of Conduct following a complaint by a work colleague.  Mr Smith’s claims under Articles 9 and 10 were dismissed on the grounds that this was a private law matter and his employer was not a public body.  In respect of the breach of contract claim, the High Court found in favour of Smith.  It was held that:-

•	he had not committed a breach of contract, as he had not committed misconduct.  Viewed objectively he had not engaged in conduct which viewed objectively was judgmental, disrespectful or liable to cause upset or offence against any policy;

•	he had not brought the Association into disrepute as his Facebook wall was for personal purposes and did not hold itself out as being for work, despite the identifying of his employer.  This was just one fact about the claimant and not a particularly interesting one;

•	the posting did not bring the Association into disrepute.  A reasonable reader of the claimant’s moderately expressed and reasonable comments would not have attributed his view to his employer and could not sensibly lead the reasonable reader to think any the less of the employer for having employed him; and

•	Facebook was not of a sufficient work-related context to activate the particular disciplinary policies of the Association  -  the work colleagues who saw the post and engaged in discussion with Smith chose to be his friends on Facebook.  Mr Smith did not thrust his views on his colleagues in the sense of a targeted email to their addresses.

82.	The Smith case may be distinguished from the present case.  In the present case the tribunal considers that the claimant’s comment “IT’S ONLY A FECKING DOG” was posted directly on the JFC page and was clearly disrespectful and liable to cause offence and upset.  Furthermore the tests for wrongful dismissal and unfair dismissal are different.  The tribunal considers that it may be reasonable for an employer to treat an employee’s actions as gross misconduct where the employee has made comments, even though they may not be work related, in the public domain in circumstances where these could cause actual or potential adverse consequences for the employer’s business/reputation.  The tribunal does not consider, in these circumstances, this can amount to a breach of the claimant’s Article 10 rights.  Dismissal may be a justifiable interference with the right to freedom of expression, which is qualified by the responsibility to exercise that right in such a way that the reputation and rights of others is protected.  Therefore the tribunal’s view is that the respondent did not act unreasonably viewing the claimant’s actions as potential gross misconduct which could lead to summary dismissal.

83.	There is an obligation on an employer to provide clear guidance to employees and it is the case that the respondent’s disciplinary policy and code of conduct did not at the relevant time contain a specific reference to Facebook and there was no social networking policy although one was introduced by the respondent after the dismissal of the claimant.  However in this case it is clear that the claimant was aware of Section 2 Code of Conduct and that his conduct outside the workplace and whilst “off duty”, may also impact on the Company.  He knew that the respondent required its employees to take care to ensure that the appropriate Company image is projected at all times.  The tribunal considers that this included what would normally be considered to be non work related activities, including Facebook.  The tribunal does not accept the assertion made on behalf of the claimant that the respondent acted unreasonably in not having specified the offence of “conduct liable to be detrimental to the company’s business interests/reputation” in the list of examples of gross misconduct in the disciplinary policy which makes it clear that the list is non exhaustive.  Further the claimant admitted during the disciplinary process that he was aware that his Facebook settings should have been private and that he had made a mistake in naming his employer on his Facebook profile.  As an experienced Facebook user the tribunal is satisfied that the claimant reasonably would have known that his comments were likely to cause offence and be linked back to his employer.  The tribunal does not therefore accept the contention that the claimant was not aware in advance of the standards of conduct required of him and that this resulted in unfairness to him in the process leading to his dismissal.

84.	The Court of Appeal in England and Wales held in Strouthos  v  London Underground [2004] IRLR 636 that an employee should only be found guilty of the offence with which he has been charged.  Care must be taken with the framing of a disciplinary charge and the circumstances in which it is permissible to go beyond that charge in a decision to take disciplinary action are very limited.  Where care has clearly been taken to frame a charge formally and put it formally to an employee, the normal result must be that it is only matters charged which can form the basis for a dismissal.  In the present case the actual charge was that the claimant’s actions were “liable to be detrimental to the respondent’s business interests/reputation.”  However the disciplinary finding made against the claimant which resulted in his dismissal, and upheld on appeal, was that he had caused actual damage to the respondent’s business interests.

85.	In reaching this finding the respondent focused on the complaints of Mr Donnelly and the senders of the three emails about the claimant’s comments which they found to be offensive and their statements that they no longer wished to do business with the respondent.  Mr Donnelly, who was a customer, did not in fact cancel his order for a new Astra.  This was disregarded by Mr Stinson at the appeal.  Both Mr McCartney and Mr Stinson accepted at face value that the emails came from bona fide prospective customers and did not carry out a proper investigation given to whether they genuinely intended to do business with the respondent.  Neither Mr McCartney nor Mr Stinson were aware of the identity of the senders, redacted from the three emails, nor did they consider the screenshots from the JFC page obtained during the course of the investigatory hearing which indicated that Mr Donnelly was effectively encouraging others to complain about the claimant.  The tribunal does not consider that a finding of actual damage to the respondent’s business interests/reputation was one that the respondent was entitled to make on the basis of the evidence which was before the disciplinary and appeal hearings and in this regard fell outside the band of reasonable responses thus rendering the dismissal unfair.  Article 130A(2) cannot apply in this instance as it is concerned with procedural failings and the tribunal considers that this amounts to a matter of substance.

REMEDY

86.	Where a complaint of unfair dismissal is found to be well founded the tribunal must first decide whether to make an Order for Reinstatement or Re-engagement.  Article 150 of the 1996 Order provides that in exercising its discretion under Article 147 to make an order for reinstatement or re-engagement, the tribunal should first consider whether to make an Order for reinstatement and in doing so shall take into account:-

(a)	whether the claimant  wishes to be reinstated;

(b)	whether it is practicable for the employer to comply with an Order for reinstatement and;

(c)	where the claimant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement. 

87.	In the present case the tribunal considers that it would not be practicable for the respondent to comply with an order for reinstatement.  This is because we consider that there has been an irretrievable breakdown of trust and confidence between the claimant and the respondent as demonstrated by the claimant’s actions in actively supporting the GSR page.  Furthermore for the reasons set out below we consider that the claimant contributed to his own dismissal which renders reinstatement/
re-engagement inappropriate.
88.	
Having declined to make an order for reinstatement, the 1996 Order provides that the tribunal shall make an award of compensation for unfair dismissal calculated in accordance with Articles 152-161, to be paid by the employer to the employee.

BASIC AWARD

89.	The tribunal may reduce the basic award (Article 156(2) of the 1996 Order) where it considers that it is just and equitable to do so, where the conduct of the claimant caused or contributed to the dismissal.  The tribunal has to decide on the basis of all of the evidence before it at the hearing on a balance of probabilities whether the claimant’s conduct contributed to his dismissal and not just on the basis of what evidence was available to the disciplinary panels.  The tribunal concludes in the present case that the claimant did cause and contribute to his own dismissal.  Having heard the claimant’s evidence the tribunal is satisfied that the claimant did deliberately post his comment “IT’S JUST A FECKING DOG” knowing that this would appear on the JFC page.  The tribunal did not believe the claimant’s evidence that he did not know that this would happen, given that he was an experienced Facebook user.  The claimant’s comment was highly offensive as was evidenced by comments posted on the JFC page in immediate response.  The tribunal considers that he would have known that this would lead, as it did, to the Friends of Cody, looking at his Facebook page, where he had named the respondent as his employer.  He did not ensure that his settings were private so that persons who were not his friend or family could view the comments posted on his on his own Facebook page.  The claimant accepted he was at fault in failing to make his settings private and as he pointed out himself at the investigatory hearing, only his friends and family would have been able to view his comments and see the identity of his employer.  As an experienced Facebook user, the tribunal is satisfied that the claimant should have anticipated that this would provoke an adverse response from those Facebook users who found his comments to be gratuitously offensive.  On this basis the tribunal considers that the claimant’s conduct was culpable and blameworthy to the extent that both the basic award and compensatory award should be reduced by 80%.  In reaching this conclusion the tribunal takes no account of the claimant’s activity on Facebook which occurred after the effective date of dismissal.

90.	At the effective date of dismissal the claimant was 52 years old, had 21 years continuous service and had gross weekly earnings of £307.09 giving a basic award of £7,830.80.  Reduced by 80%, the basic award is £1,566.16.

COMPENSATORY AWARD

91.	Article 157(1) of the 1996 Order provides that the amount of the compensatory award is to be: “… such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the [claimant] in consequence of the dismissal …”.  Paragraph 2527 of Harvey on Industrial Relations and Employment Law states “the overriding duty imposed on the tribunal is to award what is just and equitable in the circumstances.  Consequently, even if the loss arising from the dismissal is substantial the tribunal can still award no compensation if it would be unjust or inequitable for the employee to receive it.”  In Devis  v  Atkins [1977] IRLR 314, Viscount Dilhorne commented (Article 157) “does not …. provide that regard should be had only to the loss resulting from the dismissal being unfair.  Regard must be had to that but the award must be just and equitable in all the circumstances, and it cannot be just and equitable that a sum should be awarded in compensation when in fact the employee has suffered no injustice by being dismissed”.

92.	The compensatory award may also be reduced in accordance with Article 157(6) of the 1996 Order by such proportion as is considered by the tribunal to be just and equitable to the extent that it finds that the dismissal was to any extent caused or contributed to by any action of the complainant.  We have set out above the basis upon which we consider that there was contributory fault by the claimant.

93.	However the tribunal does not consider that it would be just and equitable to award to make any compensatory award in the present case.  This is because the tribunal considers that there was evidence before the disciplinary and appeal panels which would have entitled them, upon proper consideration, to find that the claimant’s conduct was liable to damage the business interests/reputation of the respondent.  Whether or not Mr Donnelly and members of the Bridges family acted reasonably in complaining to the respondent, the fact is that they were able to link back to the respondent because the claimant had not made his settings private and identified his employer.  Whether or not their perception of the claimant’s comments, and subsequent response was reasonable, has no bearing on the potential damage to the respondent’s business and reputation that their very public response and campaign on the JFC page which included calling on people not to do business with the respondent and threatening to go to the Stephen Nolan show.

INTEREST

94.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) (Northern Ireland) Order 1990.

Chairman:

Date and place of hearing:      5 March, 11, 12 and 17 April 2013, Belfast.

Date decision recorded in register and issued to parties