DHL v Ignatowicz: EAT remits reinstatement and contributory fault findings over Facebook dismissal

The Employment Appeal Tribunal has remitted findings on contributory fault and reinstatement in a case arising from the dismissal of a DHL warehouse worker over a series of Facebook posts relating to a workplace grievance, clarifying how tribunals must approach conduct occurring between dismissal and the conclusion of an internal appeal.

Background

Pawel Ignatowicz, a Warehouse Colleague employed by DHL Services Limited since 2017, was summarily dismissed in July 2023 following posts he made on Facebook after an unsuccessful application for an administrative role. His written grievance, along with commentary invoking Marxist theory and a call for the destruction of capitalist dictatorship, was published on the platform in June 2023. Subsequent posts included a reference to a manager whose surname resembled that of a controversial historical figure associated with a massacre of Jewish and Polish people, and a further post containing the phrase "congratulations you just diged the graves for your own children", directed at scammers and what the claimant described as his "other enemies".

The original Employment Tribunal found the dismissal unfair on multiple grounds, noting that the claimant had not been provided with or trained on the relevant social media policy, had not been asked to remove the posts prior to the investigation, and that no lesser sanction had been considered despite a clean disciplinary record. The tribunal reduced the compensatory award by 10% for contributory fault and ordered reinstatement.

The EAT's analysis on contributory conduct

His Honour Judge Tayler allowed both grounds of appeal relating to remedy. On contributory fault, the EAT found that the Employment Tribunal had erred by confining its analysis solely to the act of publishing the grievance online. The tribunal had failed to assess the language of the 6 June post beyond the grievance text itself, including the claimant's calls for the destruction of capitalist dictatorship, and had not addressed the relevance of the 9 June and 15 July posts, both of which predated the dismissal.

The judgement drew a clear distinction between the two statutory routes for reducing awards. Under section 122(2) of the Employment Rights Act 1996, a reduction to the basic award requires only a temporal connection between the conduct and dismissal, with no requirement that the employer knew of or acted upon the conduct. Under section 123(6), the reduction to the compensatory award demands a causal link: the conduct must have actually caused or contributed to the dismissal or, applying the reasoning in West Midlands Co-Operative Society Ltd v Tipton [1986], to the overall process of terminating employment, which encompasses the outcome of any internal appeal.

The EAT held that conduct occurring between dismissal and the conclusion of an appeal could, in principle, found a reduction under section 123(6) where it was taken into account at the appeal stage and causally influenced the decision to uphold dismissal. The matter was remitted accordingly.

Reinstatement

The EAT was equally critical of the tribunal's treatment of reinstatement. The Employment Tribunal had failed to apply the correct test, asking whether contributory conduct prevented reinstatement from being practicable rather than whether, in light of that conduct, it would be just to order it. More significantly, the tribunal had not considered whether the respondent genuinely and rationally believed that its confidence in the claimant had broken down, applying its own view instead.

The claimant's conduct during the litigation, including posts likening respondent staff to Nazis and correspondence describing dismissing managers in deeply offensive terms, was required to be assessed as of the date of the hearing. The tribunal's brief observation that such conduct had not assisted its deliberations was insufficient.

The EAT also noted that the question of the claimant's qualified right to freedom of expression under the European Convention had not been addressed, and directed the respondent to ensure the relevant authorities were before the tribunal on remission.

Both issues are remitted to the same tribunal.