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In the case of Creighton v Together Housing Association Ltd ET/2400978/2016 the Employment Tribunal held that an employer had fairly dismissed an employee after it came to light that the employee concerned had posted derogatory comments about his colleagues and the employer a number of years previously.

Mr Creighton commenced employment with Together Housing Association Ltd (“Together”) as an apprentice in 1987. In 2014 he was promoted to the position of lead gas engineer, a role which involved managing gas engineers.

In 2015 a complaint was made by one of the gas engineers that he was being bullied by Mr Creighton. In November 2015 Together suspended Mr Creighton whilst it investigated an allegation of bullying behaviour made by the engineer. During the investigation process the engineer informed Together that, in addition to the alleged bullying, Mr Creighton had posted derogatory comment about his colleagues and his employer on his Twitter account. Mr Creighton’s Twitter account was “open”, which meant that any comments he published on Twitter were available for anyone to read.

Together informed Mr Creighton that the disciplinary process was being instigated as a result of the allegations of bullying and making derogatory comments on Twitter. He was also told that these allegations, if proven, could lead to his dismissal.

At the disciplinary hearing Mr Creighton was asked to explain the comments that he had posted on Twitter, including a ‘Tweet’ that he had sent to two colleagues that stated: “just carry on and pick up your wage, this place is fucked. It’s full of absolute bell ends who ain’t got any balls”. Mr Creighton apologised for the comment and explained that he had thought at the time he had posted the comments (two or three years ago) that his Tweets were private. He asked to be treated sympathetically after nearly 30 years’ service.

Together dismissed the bullying allegations because of a lack of conclusive evidence, but upheld the allegation that Mr Creighton had posted derogatory comments on Twitter. He was, as a result, dismissed for gross misconduct.

Mr Creighton appealed the decision to dismiss him on a number of bases, including (among others) that the investigation into his misconduct had not been reasonable and that he had not been aware of the consequences of his Tweets.

The appeal panel dismissed Mr Creighton’s appeal, holding that he had been aware (or should reasonably have been aware) of the consequences of his actions, as the organisation’s disciplinary policy included as an example of gross misconduct “defaming the organisation or damaging its reputation by use of social media”.

Mr Creighton brought a claim for unfair dismissal in the Employment Tribunal.

The Employment Tribunal dismissed Mr Creighton’s claim for unfair dismissal, holding that Together’s investigation had been reasonable: the organisation had put the allegations to Mr Creighton, provided him with copies of the relevant evidence, had given him a chance to explain his actions, and had permitted him to appeal the decision. Mr Creighton had been, further, allowed to cross-examine witnesses at his disciplinary hearing and to put his case. The Tribunal therefore held that a fair process had been followed and that the dismissal was within the range of reasonable responses open to Together in the circumstances.

Chris Hadrill, an employment solicitor at Redmans, commented on the case: “The job of the Tribunal is not to determine whether it thinks that an employer’s decision to dismiss was correct or not, but to determine whether a fair process was followed in reaching the conclusion and whether the decision reached was within the reasonable range of responses.”

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees

Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk.

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