Warnings issued in bad faith

Way v Spectrum Property Care

Warnings at work are a bit like stepping stones, each taking the employee a little closer to dismissal. But where it’s alleged that a warning should not have been issued, is the employer still entitled to rely on it in later disciplinary proceedings?

Mr Way was an Electrical Contracts Manager for Spectrum. He was on a final written warning and went on to be dismissed for unrelated misconduct. The company took account of the final written warning in reaching its decision to dismiss.

Mr Way had alleged bad faith on the part of the line manager who had issued the warning. The employment tribunal didn’t hear evidence about this at his unfair dismissal hearing; the dismissal was fair, the tribunal said. The Employment Appeal Tribunal held that, while Mr Way had done enough to raise a case of bad faith and the tribunal should have looked into this, it made no difference to the outcome.

But the Court of Appeal has sent the case back to a new tribunal. It will decide if the earlier warning was issued in good faith. If it wasn’t, it would have been unreasonable to rely on it when deciding if there was sufficient reason to dismiss Mr Way. And the fairness of the dismissal hinges on that.

So be clear about the significance of employees’ submissions on the motives behind warnings. Take any mention of bad faith seriously and be careful to not let it undermine the reasonableness of your disciplinary decisions. Ultimately, you have to disregard any past warning if, after investigation, you agree it was issued in bad faith.

Offensive tweets and unfair dismissal

Game Retail Ltd v Laws

Mr Laws was Game’s risk and loss prevention investigator. He opened a Twitter account (which didn’t specifically link him to his employer) and began following the stores for which he was responsible so that he could monitor inappropriate activity. Sixty-five Game stores subsequently followed Mr Laws, after one of its managers encouraged them to do so.

But it was Mr Laws himself who got into hot water for posting offensive tweets. He was dismissed but initially won his unfair dismissal claim. Dismissal was not within the band of reasonable responses, the tribunal said. The tweets had been posted using Mr Law’s own phone, outside working hours, and for private purposes. It hadn’t been established that any member of the public had access to Mr Law’s Twitter feed and had connected him with the company. Also relevant was the fact that Game’s disciplinary policy didn’t specifically say that use of social media in this way could be treated as gross misconduct.

The Employment Appeal Tribunal (EAT) disagreed. Mr Laws had not attempted to ensure that his tweets only went out to a private audience. He hadn’t set up two accounts (one personal, one professional), nor had he adjusted his settings to restrict his followers. And he was knowingly tweeting in the context of having some 65 of the Respondent’s stores following his feed – and on the recommendation of a store manager. It therefore couldn’t be considered private usage.

The EAT steered away from issuing guidance on misuse of Twitter. Each case is different. But what we can say is that these are some of the important things to take into account:

  • what the tweets say
  • the employee’s settings – have these been restricted?
  • the association that may be made between the employee and the employer (not just in the profile section, but throughout the Twitter feed)
  • use of separate accounts for personal and work purposes
  • what the company disciplinary policy says about sanctions for social media misuse.