A building company driver sacked for posting critical Facebook comments about the firm’s vehicle maintenance failings has won an unfair dismissal claim against his former employer.
Niall Kass was working for Perthshire company, Gillies & Mackay, when the police stopped his vehicle and issued him with a £60 fixed penalty after discovering the vehicle’s MoT had expired.
Mr Kass criticised his employers on Facebook and his disparaging comment was seen by the company’s business manager, Carra Marshall. Ms Marshall asked Mr Kass to remove his Facebook post, claiming it was disrespectful and would be damaging to the business.
Ms Marshall’s father, John Mackay, one of the firm’s directors, told Kass his actions constituted serious misconduct, warranting summary dismissal.
In viewing the case, Employment Tribunal judge, Ian McFatridge, said that there had been procedural failings in the dismissal and Mr Kass had not been given the chance to explain himself.
The Tribunal considered the company had overreacted, saying that in pre-Facebook days, Kass would have “vented his frustration by telling his friends and family of the incident directly or on the telephone”, and this would not have been grounds for instant dismissal.
In delivering the verdict it ruled that Kass had every right to be upset when, because of his employer’s shortcomings, he received the fixed penalty notice.
However, his compensation was reduced by 20% to £1,160, after it was judged that he had contributed to his sacking.
Commenting on the case, Workplace Law HR consultant, Heidi Thompson, said: “It remains a distinct area of concern for employers as to how far they are able to control what employees say in public forums, particularly when it is deemed defamatory as is suggested in this case.
“It appears that the reason for the police fine was due to the ‘fault’ of the employer, and as such, the Tribunal considered it justified that the employee had made such a comment on Facebook. There was also the argument that this was a personal Facebook account only available to his friends, one of which was also an employee of the company.”
Commenting on the reduction to compensation, Thompson said: “The key fact here is that the claimant contributed to his dismissal by making the comments on Facebook, which the Tribunal accepted.
“This case highlights the need for employers to have a clear social media policy, which provides clarity on the rules and restrictions for employees and an understanding by managers as to the actions open to them with similar cases.
“The main failing for the company here was its lack of procedure. It does not matter what the allegation is or how serious it is considered to be, employers are required to follow the ACAS code of practice for disciplinary procedures and must have a robust procedure and trained managers. Without this, any Tribunal case will be difficult to defend and they are likely to incur fines.”
