Victoria Brown successful in EAT appeal on contributory conduct and reinstatement in social media dismissal case

Victoria Brown, instructed by Roxanne Cullinan of DAC Beachcroft LLP, acted successfully for the appellant employer in the Employment Appeal Tribunal decision of DHL Services Limited v Ignatowicz [2026] EAT 74.

The appeal concerned an employee who was summarily dismissed following a number of social media posts. Initially, the claimant posted the contents of a grievance on Facebook, accompanied by commentary describing the “capitalist dictatorship” as “evil” and calling for its destruction. The employer also took issue with further posts during the claimant’s employment, and comments during the litigation, including comparisons between the conduct of the employer’s managers and the Nazis.

Following a finding of unfair dismissal, the Employment Tribunal reduced the compensatory award by 10% for contributory conduct. That conduct was found to be solely that the claimant had chosen to publicise his grievance. The Tribunal ordered reinstatement, finding that relationships could be repaired.

Employment Appeal Tribunal

HHJ Tayler upheld the appeal.

In considering contributory conduct, the EAT held that the required approach differs between the basic and compensatory awards. For the basic award, the conduct must have occurred before the dismissal or notice of it. Conduct between the dismissal and the appeal cannot be considered. For the compensatory award, conduct prior to the appeal can be taken into account, applying the concept of dismissal as the “overall process of terminating the contract of employment” established in West Midlands Co-Operative Society Ltd v Tipton.

On reinstatement, the EAT found that the Tribunal had substituted its own view rather than conducting an assessment of whether the employer genuinely and rationally believed that it could no longer have confidence in the claimant such that reinstatement was impracticable. The Tribunal had declined or failed to take into account various matters, including conduct during the litigation including a comparison between managers at the employer and the Nazis. In taking into account contributory conduct, the Tribunal had wrongly asked whether reinstatement was nonetheless practicable rather than just.

The matter was remitted to the same Employment Tribunal for redetermination of contribution and reinstatement, including consideration of the qualified Convention right to freedom of expression under Article 10 ECHR, which had not been addressed previously.

Find out more

Victoria is a pensions and employment specialist, recognised as a leading junior in both by Chambers & Partners and Legal 500. Her practice includes pure pensions/employment, as well as related professional negligence and public law work.

To find out more about Victoria, contact  Chris Rowe on +44 (0)207 427 4911 for a confidential discussion.

News 29 May, 2026