An employee’s “extremely derogatory” social media posts about his boss’s generosity in awarding a Christmas bonus did not justify the employer’s failure to give him notice pay when he was dismissed, a tribunal has ruled.
Lancashire-based Benson’s Vending dismissed Darren Atherton for gross misconduct without notice after a string of social media posts in which he told his manager to stick his Christmas gift “where the sun doesn’t shine”.
Although the Manchester employment tribunal dismissed a separate claim of unfair dismissal, it ruled Atherton’s conduct did not pass the “very high hurdle” of gross misconduct, and therefore the business was in breach of its contract with its employee by not giving him notice or notice pay.
Atherton had been employed by the vending machine company from April 2012. The tribunal heard managing director Ken Haselden had a practice of giving a discretionary Christmas bonus gift to employees. These gifts were initially in the form of bottles of alcohol, however Haselden accommodated the preference of some employees for a voucher of a similar value.
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In 2017, Haselden decided to reduce the value of the gifts, which had reached around £50 per employee, due to financial constraints. He reverted to gifting bottles of alcohol.
Atherton and a colleague complained about the change to colleagues in “sufficiently strident terms” that other employees went to Haselden and reported the pair had been “verbally aggressive” about Haselden.
Haselden was also informed there had been comments posted on Facebook. Atherton’s colleague Simon Minshull had posted: “Just when you thought staff morale couldn’t get any worse, hey fucking presto #insult #disgusted”, followed by a picture of the clown Ronald McDonald with the caption: “The only difference between McDonalds and where I work is McDonalds has only one clown running the show.”
To this, Atherton allegedly posted: “We’ve all just bought Ken a new dog with our Christmas bonus!!!”, apparently implying he believed Haselden had re-directed the money intended for bonuses towards a new pet.
Another post from Atherton read: “He [Haselden] spends a few grand on a new dog then we get told ‘no bonus this year’ but we can have a bottle!!!” A third post read: “Well, he can stick his bottle where the sun doesn’t shine because I refuse to be insulted in this way!!!”
Minshull was suspended for several days in December while an investigation took place. His apology was accepted by Haselden in a return-to-work meeting on 18 December 2017.
A disciplinary hearing was held on 21 January 2018, and the minutes showed Atherton apologised for all his comments on Facebook and said that given he was 55 he was “embarrassed and regrets what he had posted”. Atherton’s union representative also pointed out he had no previous warnings of misconduct and had always had a previously good working relationship with Haselden.
In a brief letter the next day, Haselden wrote to Atherton stating he was dismissing him without notice, or payment in lieu of notice. In the letter, Haselden said he had found several of the comments made by Atherton in the meeting and on Facebook “extremely derogatory”. He added that Atherton’s length of service did not mitigate his actions.
Atherton appealed the decision on 30 January 2018, arguing, among other things, that his treatment had been inconsistent and that he had not received a fair and impartial hearing. The appeal failed.
The employment tribunal ruled that while Benson’s Vending was within its rights to dismiss Atherton, Atherton’s conduct was not gross missonduct.
Employment Judge Ryan explained that an employer may dismiss without notice or the requirement to give notice pay if the employee has committed gross misconduct, but added: “When deciding whether the conduct of the employee is so serious that it entitles the employee to be treated as dismissed, recent authorities have indicated that that is a very high hurdle to pass.”
Benson’s Vending was ordered to pay Atherton £5,376.
A further claim of unfair dismissal was dismissed, with the judge ruling he was “unable to conclude that no reasonable employer in those circumstances would dismiss” given the nature of the comments.
Paul Holcroft, associate director of Croner, said: “In this case, the claimant and a colleague were involved in the same incident of misconduct; the claimant was dismissed but the colleague was not.
“However, the tribunal’s finding that the behaviour was ‘similar’ and not ‘identical’ is significant. The claimant’s behaviour was deemed to be more serious than that of the colleague and therefore different treatment by the employer was not unfair.”