In Miss D Trench v Performance Bar Limited Damaris Trench liked and shared comments about how ‘creepy’ owner Himesh Patel allegedly asked a colleague for a ‘threesome’, bought underage girls drinks and tried to kiss female staff.
Her boyfriend Dan Sargeant had made the post after he was sacked from student venue Trebles in Lincoln, an employment tribunal heard. He had been accused of drinking on shift and being repeatedly late for work and chose to resign instead of facing disciplinary action.
Following this, he wrote a lengthy post on Facebook and Snapchat criticising Mr Patel for ‘wildly inappropriate’ behaviour.
The post further accused owner Mr Patel of having ‘no interest’ in staff wellbeing, saying he ‘cut corners’ in providing PPE equipment, didn’t follow Covid safety procedures and didn’t give staff breaks after seven-hour shifts. Miss Trench shared the posts on both social media platforms but deleted them hours later.
Miss Trench was sacked at the end of October, just six days after sharing the Facebook post that was ‘detrimental to our business’ for gross misconduct.
However, Employment Judge Kirsty Ayre ruled Miss Trench’s behaviour fell below this threshold – especially seeing as there was no social media policy for her to have adhered to.
Judge Ayre said: ‘Miss Trench’s behaviour was not gross misconduct.
‘Trebles had no social media or disciplinary policy warning employees that the behaviour engaged in by Miss Trench is even a disciplinary issue.
‘There was no evidence of any previous misconduct by Miss Trench. She took the Facebook post down very quickly and apologised for it. She clearly had insight into what she’d done and that it had the potential to damage Trebles. She did not write the post and was not acting vindictively or deliberately to damage [the bar]’s interests. She made a mistake, for which she paid. No reasonable employer would, in our view, have dismissed in these circumstances.’
Miss Trench’s claims of unfair dismissal succeeded, and a remedy hearing to decide upon how much compensation Trebles owner Performance Bar Limited will have to pay will be held in due course.
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