Case Review: Lorry driver unfairly dismissed after Facebook comments

A Scottish timber building company has lost an unfair dismissal case brought by an employee who was sacked after making derogatory comments on Facebook.

Niall Kass, a lorry driver for the company Gillies and Mackay Ltd in Pertshire, was stopped by the police in his company vehicle which had an expired MOT. He was served a £60 fixed penalty notice, and took to Facebook afterwards, angry at his employers for not doing their job properly.

An employment tribunal found that Mr Kass had every right to be angry after receiving the fixed penalty notice. However they also found that Mr Kass had contributed to his sacking and the compensation awarded was reduced by 20%.

The status update on Facebook, posted on Friday, had been seen by potentially 100 of his Facebook friends, which included the company’s business manager, Carra Marshall. She asked him to remove the message, under the impression that the MOT was the driver’s responsibility and that his comments showed a lack of respect for his employer. He was not able to remove it immediately as he had made the comments on his phone and did not know how to delete them.

When one of the two directors learnt of the message, he telephoned Mr Kass on Saturday to invite him to a meeting on Monday morning. Mr Kass removed the status update via a PC.

On Monday Mr Kass was given a letter stating that the company felt his actions on Facebook constituted gross misconduct which would result in summary dismissal.

He appealed against his dismissal but lost, and brought a claim through the tribunal system for unfair dismissal.

The employment tribunal found that there had been procedural defects in the dismissal, in particular that a letter of dismissal had been prepared before the meeting, and that the employee was not given the opportunity to provide an explanation.

The tribunal also found that the appeal had not been handled sufficiently independently.

In considering the potential damage to the company caused by the Facebook comments, the tribunal judge said that the comments could not be seen by the public at large – i.e. they could only be seen by his friends on Facebook – and considered that the employer had overreacted.

Interestingly, the tribunal commented that prior to Facebook, had a similar event occurred, Mr Kass would have “vented his frustration by telling his friends and family of the incident directly or by telephone” and that this would not have been grounds for instant dismissal.