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Another social media case – the importance of appeals

Last month, we blogged on the social media case of The British Waterways Board v Smith. The Employment Appeal Tribunal has now released its judgement in Biggin Hill Airport v Derwich, which featured an employee who was dismissed for bullying a colleague who unfriended her on Facebook. As well as being another interesting example of social media in the courts, the case is a useful reminder of the importance of effective disciplinary appeals.

Ms Derwich (who Biggin Hill employed as a handling agent) was a colleague of Ms King. Ms King was then promoted to supervisor and, before taking up her new post, unfriended Ms Derwich and her colleagues.

The unfriending did not go down well, and a collective grievance was raised about Ms King’s promotion. As well as this, Ms Derwich was involved in changing Ms King’s screen-saver to a picture of a witch.

Biggin Hill initiated disciplinary proceedings against Ms Derwich, and ultimately dismissed her for gross misconduct. Her appeal against dismissal was refused.

The Employment Tribunal upheld Ms Derwich’s unfair dismissal claim on procedural grounds. These included:

  • the disciplinary allegations against Ms Derwich were not made clear to her;
  • Ms Derwich was not provided with copies of Biggin Hill’s initial investigation meetings; and
  • she was not provided with details of further investigations which took place after her disciplinary meeting.

The Employment Appeal Tribunal upheld Biggin Hill’s appeal. It found that the Employment Tribunal had failed to consider whether the procedural defects it identified might have been “cured” at the appeal stage. In particular, the EAT observed that:

  • Ms Derwich was well aware of the disciplinary allegations by the time of the appeal;
  • copies of the initial investigation meetings were sent to Ms Derwich six days before her appeal meeting; and
  • by the time of the appeal meeting, Ms Derwich was aware of the further investigations that took place.

The case is a useful reminder that procedural defects during disciplinary proceedings can be cured by effective appeal proceedings. If an employee makes complaints about a disciplinary process, it will usually be best practice to consider (and hopefully “cure”) these as part of any appeal.

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