In DHL Services Ltd v Ignatowicz [2026] EAT 74, the Employment Appeal Tribunal considered an employer’s appeal against remedy findings made after a warehouse employee was found to have been unfairly dismissed for Facebook posts connected to a workplace grievance.
The unfair dismissal finding itself was not overturned. The appeal focused on whether the Employment Tribunal had properly assessed contributory conduct, whether reinstatement had been correctly ordered, and how the qualified right to freedom of expression should be addressed when those remedy issues are reconsidered.
Key background
The claimant began working for DHL on 5 March 2017 as a Warehouse Colleague. He later applied unsuccessfully for an internal Warehouse Administration Clerk role and raised a grievance about the recruitment process.
After raising the grievance, the claimant posted grievance-related material on Facebook. The posts included wider political comments, references to enemies being destroyed, and later posts made during the disciplinary and appeal process.
DHL investigated the posts and invited the claimant to a disciplinary hearing. The formal disciplinary charge related to the 6 June Facebook post, but the Employment Tribunal found that the dismissing officer had also been influenced by a later 9 June post.
The claimant was summarily dismissed. His appeal was rejected. The Employment Tribunal later found that the appeal was not a genuine attempt to engage with the points raised by the claimant.
Original Tribunal Findings
The Employment Tribunal rejected the claimant’s claims of direct sex discrimination, direct religion or belief discrimination and victimisation.
However, it upheld his unfair dismissal claim. The Tribunal found that DHL had not shown reasonable grounds for treating the claimant’s conduct as gross misconduct.
In particular, the Tribunal found that:
the claimant had not been trained on the social media policy;
DHL had not shown that he had received the relevant policy in the form relied on;
he had not initially been asked to remove the 6 June post;
breach of the social media policy was not expressly listed as gross misconduct in the disciplinary policy;
there had been inadequate consideration of mitigation, lesser sanctions and actual reputational harm.
The Tribunal accepted that DHL had broadly followed the procedural steps in the ACAS Code, but found that the substance of the dismissal decision fell outside the range of reasonable responses. It concluded that no reasonable employer would have summarily dismissed the claimant in those circumstances.
The Tribunal reduced compensation by 10% for contributory conduct and ordered reinstatement.
Remedy issues considered by the EAT
Contributory Conduct
The EAT held that the Employment Tribunal had erred in law by giving only a brief assessment of contribution.
The Tribunal had reduced compensation by 10% because the claimant had chosen to publish his grievance on Facebook. However, the EAT found that this was too narrow an assessment.
The EAT explained the distinction between reductions to the basic award and compensatory award under the Employment Rights Act 1996.
For the basic award, the question is whether the claimant engaged in blameworthy conduct before dismissal, regardless of whether DHL knew about that conduct at the time.
For the compensatory award, the conduct must have caused or contributed to the dismissal. This means the employer must have known about the conduct and taken it into account when deciding to dismiss or when upholding dismissal on appeal.
The EAT held that the Tribunal should have analysed the claimant’s conduct across the 6 June, 9 June and 15 July posts when considering the basic award. It should also have considered whether those posts and the August posts contributed to the dismissal or rejection of the appeal when assessing the compensatory award.
Reinstatement
The EAT also held that the Employment Tribunal had erred in its approach to reinstatement.
The correct questions were whether reinstatement was practicable and, if the claimant had contributed to dismissal, whether it was just to order reinstatement.
The EAT found that the Tribunal had focused too much on whether it considered reinstatement workable, rather than properly assessing whether DHL genuinely and rationally believed it could no longer have confidence in the claimant.
The Tribunal also needed to consider the full effect of the claimant’s conduct, including later posts, conduct during the litigation, and subsequent comments that could affect trust and confidence.
The EAT noted that the Tribunal would need to consider the position as it stood at the remitted hearing, including any later relevant comments relied on by DHL.
Freedom of Expression
The EAT also identified freedom of expression as a live issue.
The Employment Tribunal had not considered whether the claimant’s qualified Convention right to freedom of expression affected the approach to contribution, reinstatement or re-engagement.
The EAT did not decide that issue itself, but said it would need to be addressed when the remedy issues were reconsidered.
Outcome
The employer’s appeal succeeded on both remedy grounds.
The EAT upheld ground 4, finding that the Employment Tribunal had not properly assessed contributory conduct. The Tribunal had focused only on the fact that the claimant had posted his grievance on Facebook, without properly analysing the seriousness of the additional wording in that post or the later Facebook posts that may have been relevant to the dismissal and appeal outcome.
The EAT also upheld ground 5, finding that the Tribunal had erred in its approach to reinstatement. In particular, the Tribunal needed to consider whether DHL genuinely and rationally believed that trust and confidence had broken down, taking account of the claimant’s posts, his conduct during the litigation, and any later relevant comments.
The findings on contributory conduct and reinstatement were remitted to the same Employment Tribunal for reconsideration. The unfair dismissal finding itself was not overturned. The EAT also identified the qualified right to freedom of expression as a live issue to be addressed when the Tribunal reconsiders contribution, reinstatement or re-engagement.
How would Lex HR have assessed this case before Tribunal?
To test Lex HR's Employment Tribunal Risk Analyser, we recreated a workplace scenario based on the facts reported in DHL Services Ltd v Ignatowicz [2026] EAT 74. All references to the Tribunal's findings, compensation award and appeal outcome were removed before the scenario was analysed by Lex HR. The assessment below shows the claims Lex HR identified and the likely Tribunal outcomes based solely on those underlying facts.
Lex HR Employment Tribunal Risk Analysis
| Potential Employment Tribunal claim | Lex HR assessment | Risk score |
|---|---|---|
| Unfair dismissal |
Likely to succeed, though not overwhelmingly. The employer had a potentially fair reason in conduct or some other substantial reason terms because the posts were workplace-related, public-facing, upset colleagues, and arguably risked reputational and workplace relationship harm. However, a Tribunal is likely to scrutinise proportionality and process closely. The employee had a clean disciplinary record, apologised, removed the original post, said they would not repeat the conduct, raised personal mitigation, and said they had not been trained on the social media policy. The employer also did not require immediate removal when first aware of the post, which may weaken the argument that there was urgent reputational risk. Although later posts worsened the employee's position, the formal allegation reportedly focused mainly on the original grievance-related post. Reliance on later posts without clear charge particulars could count against procedural fairness. On these facts, a final written warning may be seen as the more proportionate sanction, especially for the original post. However, the continued posting during the process materially increases the employer's prospects of defending the claim. |
7/10 ■■■■■■■□□□ |
| Wrongful dismissal / notice pay |
Moderate risk to the employer. Summary dismissal without notice will be upheld only if the conduct was sufficiently serious to amount to a repudiatory breach or gross misconduct. The employer can point to repeated workplace-related posts, references capable of being read as hostile or threatening, upset caused to a manager, and continued posting even after the investigation and appeal process had begun. Against that, the employee did not always identify the employer directly, said there was no intent to damage reputation, removed the original post, apologised, and there is no clear evidence of actual reputational damage. Tribunals often distinguish between conduct justifying disciplinary action and conduct serious enough to justify instant dismissal, particularly for one-off or emotionally driven online comments. On these facts, the employer has a credible gross misconduct case, but if a Tribunal finds the language fell short of a genuine threat and that dismissal was excessive, notice pay may be awarded. |
5/10 ■■■■■□□□□□ |
| Reinstatement or re-engagement |
Unlikely, even if unfair dismissal succeeds. The employee may succeed on liability but still struggle to obtain reinstatement or re-engagement. Trust and confidence appear materially damaged. Multiple posts were made, including posts after dismissal and during the appeal process, criticising managers and suggesting workplace-related content might be reposted if the matter was not resolved. Tribunals consider practicality, ongoing working relationships, and whether the employee contributed to the breakdown. Even where dismissal is unfair, reinstatement is less likely where social media conduct has damaged confidence or workplace relations. A compensatory or basic award is more likely than an order returning the employee to work. |
3/10 ■■■□□□□□□□ |
| Religion or belief discrimination / freedom of expression arguments |
Likely to fail as a standalone discrimination claim. The scenario refers to comments about capitalism, employers, decision-making and wider political issues, but there is no clear evidence that the dismissal was because of a legally protected philosophical or religious belief. The employee's best point would be that the posts involved personal expression and that dismissal was disproportionate. However, belief-related claims require careful proof that the belief is legally protected and that the treatment was because of the belief or its manifestation. Here, the known employer rationale is reputational risk, workplace morale, upset caused to colleagues, and continued posting. That points to objection to the manner, context and impact of the conduct rather than to the belief itself. Freedom of expression may still be relevant to proportionality and remedy, but without clearer evidence of a protected belief and causal link, this claim is weak. |
2/10 ■■□□□□□□□□ |
How did Lex HR compare?
Using only a reconstructed workplace scenario based on the facts reported in DHL Services Ltd v Ignatowicz [2026] EAT 74, Lex HR identified unfair dismissal as the strongest potential claim, while also recognising that the employer had credible arguments based on workplace conduct, reputational risk and continued social media posting. Importantly, Lex HR did not assume that a successful unfair dismissal claim would necessarily lead to reinstatement or re-engagement, assessing that remedy as low risk because trust and confidence appeared materially damaged. This closely reflects the EAT’s focus on remedy, contribution and practicability, and shows how Employment Tribunal risk analysis can separate liability risk from the likely outcome on compensation and reinstatement.