Mr Kurmajic was employed by Sainsbury’s for 12 years as a Customer Assistant. There were policies in place in relation to social media, explaining that staff should keep customer information safe and not post anything on social media that they would not say to a customer’s face, or that would have a negative impact on Sainsbury’s. The policies confirmed that a breach could result in disciplinary action, and in the most serious cases, dismissal.
In May 2017, Mr Kurmajic and other colleagues assisted a driver in the store car park when his car had become stuck on a ramp. The next day, a colleague placed photos of the incident on their personal Facebook page with the comment ‘whoops’. This prompted someone else to ask ‘How did they manage that?’ and Mr Kurmajic replied with a comment giving the driver’s name, age (86), address and car registration number.
The Facebook post was shown to the store manager, Mr Hopwood, who believed that Mr Kurmajic had potentially committed an act of gross misconduct. Mr Hopwood told the departmental manager, Mr France, his view and asked Mr France to conduct an investigation.
The next day, Sainsbury’s wrote to Mr Kurmajic suspending him on full pay for ‘bringing the brand into disrepute’ and for breaching their policies by posting a customer’s personal details on Facebook.
At the investigation meeting with Mr France, Mr Kurmajic said he had posted the details to express his concern about the driver’s fitness to drive (referencing a driver in Glasgow who had been unfit to drive and had killed multiple people as a result) and queried whether somebody driving in the car park was a ‘customer’.
Mr Kurmajic had initially said that he would post the drivers’ details again if the clock was turned back, but after further discussion, indicated that he would judge the situation differently next time. Mr France’s notes from the investigation meeting said that ‘after explaining rules/regulations still insists he would post again. He thinks he is in more danger. Does not seem to understand what he did was wrong’, before later stating that on two subsequent occasions Mr Kurmajic indicated that he would not.
Mr Kurmajic later attended a disciplinary meeting with Mr Hopwood. In preparation, Mr Hopwood had only read the notes of the suspension and investigation meetings. Following the meeting, Mr Kurmajic was dismissed for gross misconduct.
Mr Hopwood did not give more than superficial consideration to any sanction other than dismissal. Although Mr Kurmajic’s reasons for the post, being the health and safety concerns, were a mitigating factor, Mr Hopwood had failed to take this into account.
After an unsuccessful internal appeal, Mr Kurmajic brought a claim to the Employment Tribunal for unfair dismissal and won. Although the Facebook post was potentially a fair reason for dismissal, the tribunal found issue with the way the case was approached - in particular that Mr Hopwood’s bias regarding Mr Kurmajic’s conduct made him careless, meaning he failed to pay enough detail to the policies, the motivation behind the post, and to considering any alternatives to dismissal.
However, as Mr Kurmajic was partly to blame by making the Facebook post, his compensation was reduced by 30%.
This case is a good reminder that even if an employer has a good and fair reason for dismissing an employee; they still need to follow a fair, robust and correct procedure if they wish to avoid a claim for unfair dismissal.
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