Elizabeth Hodgetts recently represented West Midlands Fire & Rescue Service in defending the consolidated claims for unfair dismissal and wrongful dismissal of 5 former firefighters. Each claimant was a member of a 9-member WhatsApp group that exclusively comprised firefighters, and each had posted content that ostensibly breached the organisation’s Policies. The other 4 members of the group had not been dismissed. The claimants sought reinstatement.
The Tribunal, dismissing all the claims, answered some of the principal issues as follows:
- Were the dismissals outside the range of reasonable responses having regard to the claimants’ Art. 8 rights? Applying Garamukanwa v Solent NHS Trust [2016] IRLR 476, EAT and BC v Chief Constable of the Police Service of Scotland [2020] SCLR 887, Ct of Session (Inner House), the claimants’ Art. 8 rights were not engaged. The content included pornography, and racist and homophobic material. The Policies had been consulted on with the FBU, and brought to the attention of employees. The Policies prohibited the posting of such content on social media including WhatsApp, in and out of work hours. The WhatsApp group comprised exclusively firefighters and the claimants had explicitly accepted in the disciplinary proceedings that the group was an extension of the workplace. The most junior member, who ultimately blew the whistle, had only been joined into the group because that member had joined that team of firefighters. Further, while the claimants did not believe that other members of the group would disclose the content, that fact did not mean that their Art. 8 rights were engaged.
- Were the dismissals outside the range of reasonable responses having regard to the fact that other members of the WhatsApp group were given different sanctions or no sanction? Applying Hadjioannous v Coral Casinos Ltd [1981] IRLR 352, EAT, an argument based on inconsistent treatment in like cases can only succeed if the 2 cases are truly similar. Further, applying Paul v East Surrey District HA [1995] IRLR 305, CA, General Mills (Berwick) Ltd v Glowacki UKEAT/0139/11, and Wilko Retail Ltd v Gaskell UKEAT/0191/18, the distinction drawn between different members of the WhatsApp group by the decision-makers was within the range of reasonable responses. There were appreciable differences in the material posted by those who were dismissed and those who were not, save in the case of one member. In that person’s case, there was evidence that the material had been posted because that person had felt pressured to do so, and the individual had brought the content to the attention of the organisation.
- Did the posting of the material constitute a repudiatory breach of contract? The posting of the material constituted a wilful and serious breach of contract. Referring to Henderson v Hackney LBC [2011] EWCA Civ 1518, CA, the posting of such material was well capable of constituting a repudiatory breach. The trust and confidence in the claimants was seriously damaged, “and in the Tribunal’s view quite reasonably so”.
