Supermarket worker who called boss a ‘young idiot’ on Facebook was unfairly dismissed, tribunal rules
Judge says retailer’s decision to fire employee who had become ‘thorn in management’s side’ was not within the band of reasonable responses.
An online shopper for supermarket Sainsbury’s was unfairly dismissed after she told a former colleague that her new manager was a “young idiot” in a Facebook comment, a tribunal has ruled.
68-year-old Miss Spence, whose daughter had created the Facebook account for her, told the tribunal she believed she was contacting the former colleague privately and had no idea the comment was public.
The tribunal said that her dismissal, which happened after she questioned whether the disciplinary manager was in a romantic relationship with the manager referenced in the Facebook comment, was “manifestly inappropriate”.
Further claims for unpaid holiday pay were dismissed.
The tribunal heard that Spence was employed at Sainsbury’s Cameron Toll premises in Edinburgh from 4 October 1995 until her termination on 17 July 2019. Her most recent online shopper role involved picking orders for online deliveries, and consisted of two 6.5-hour shifts per week because of a disability. Prior to the incident, she had no disciplinary action against her in her 24 years of employment.
In 2017, Spence’s daughter created a Facebook profile for her, and Spence understood that all of her posts would be private. The tribunal also heard that Spence asked her daughter to remove the reference to her employment at Sainsbury’s, but she did not.
On 8 September 2018, Spence posted a comment about her new manager, Mr Macbride, in response to a post from a former colleague. Spence wrote: “we r having problems at work with new manager he’s a young idiot hasn’t got a clue how to run the department will tell u about it next time I c u take care”
Because of her privacy settings, only seven other people could see the post, but one of them was an existing manager who took a screenshot of Spence’s comment and sent it to the senior management team.
Spence was then invited to an investigatory meeting and subsequent disciplinary hearing for bringing the brand into disrepute and breaching the company’s fair treatment and equality, diversity and inclusion policies.
The tribunal found that Sainsbury’s had various HR policies that Spence had had no training on, such as social media guidelines, and the equality, diversity and inclusion policy which states that line managers must make sure colleagues understand the policy. However Spence had no conversations with her line manager on this policy outside of the disciplinary process.
The disciplinary hearing was chaired by customer trading manager Ms Fraser, and Spence was represented by her trade union representative Mr Ireland. She was issued a final written warning letter on 24 October 2018 which remained active for 12 months, but Ireland advised Spence to not appeal against the decision.
Spence did raise a fair treatment at work complaint against the manager who shared the screenshot of her Facebook comment, which was not upheld.
She also raised a grievance against Macbride for “discrimination arising from her disability”, however this was not upheld. The tribunal found Sainsbury’s “did not follow its processes” when dealing with this grievance as there were no meetings held.
Then, in January 2019, Spence raised concerns with Ireland, as her union representative, that Fraser was in a relationship with Macbride at the same time she was conducting the disciplinary process. Ireland informed Macbride of Spence’s concern, who then told Fraser.
Fraser then raised a formal fair treatment complaint against Spence, complaining that Spence had been asking questions about when Fraser and Macbride had entered a relationship.
The tribunal found that “at some point towards the end of 2019” Fraser and Macbride were in a relationship but at no stage were they asked about when they had entered a personal relationship, nor was Fraser asked about her relationship status when she carried out the disciplinary against Spence.
Fraser’s grievance was handled by a manager at another store, Ms Mitchell, who upheld Fraser’s complaint against Spence, and invited her to a meeting to discuss her misconduct, which she described as “a breach of the company’s fair treatment and equality, diversity and inclusion policies”.
Mitchell concluded that neither Fraser or Macbride were lying in their statements and invited Spence to a disciplinary meeting on 24 April 2019.
The meeting was chaired by operations manager Mr Hogg, and the tribunal noted that he was “unwilling to listen” to Spence’s claims that she had been bullied and raised various grievances about how her colleagues treated her.
Hogg did not investigate any of Spence’s claims raised in the disciplinary meeting and dismissed her for misconduct.
The tribunal said it had “no hesitation” in concluding that even a final written warning was “manifestly inappropriate”. It also said that Hogg’s conclusion that she had committed misconduct and should be dismissed was “fundamentally flawed”.
Judge A Jones said it was clear that Hogg thought the only options available to him was “no action or dismissal”, adding that “in these circumstances, the dismissal of [Spence] was not within the band of reasonable responses and therefore unfair”.
Jones said: “While it was clear that [Spence] had become a thorn in the side of the managers to whom she reported, the Tribunal did not accept that [Spence] raising genuine and valid questions as to whether a manager who had issued her with a final written warning had a conflict of interest at the relevant time amounted to blameworthy conduct.”
Spence was awarded a total of £8,357.20, consisting of a basic award of £3,390 and a compensatory award of £4,867.20.
This ruling is a “useful reminder” for employers when deciding on an appropriate sanction along with it is not just the offence but the quality of the investigation and approaching the disciplinary with an open mind that will count towards fairness.
employers needed to have an “open mind” when dealing with disciplinary allegations.
An employer must be prepared to form an opinion based on all the facts of the circumstances without being swayed by preconceptions, without evidence, any allegations that an employee has brought a company into disrepute might be “fundamentally flawed, and resulting dismissals may be built on fiction.