The effect of contributory conduct on unfair dismissal compensation

In the recent Employment Appeal Tribunal (EAT) case of DHL Services Limited v Pawel Ignatorwicz [2026] EAT 74, the EAT clarified the legal principles for reducing awards for contributory conduct and provided guidance on what employers need to consider when deciding on whether reinstatement is possible.

Background  

The Claimant worked as a warehouse colleague at DHL from 2017. In May 2023, the Claimant submitted a grievance after failing to secure an internal promotion. On 6 June, the Claimant posted his grievance on Facebook adding political commentary and controversial language, he then made two other posts on 9 June and 15 July referencing the recruiting manager’s name whose surname was similar to a controversial historical figure. The Claimant also added further political commentary to their posts.

On 31 July 2023, the Claimant was summarily dismissed for gross misconduct for posting derogatory content on social media which undermined DHL’s reputation.

The Claimant appealed the dismissal, but the decision was upheld.

The Claimant brought a claim for unfair dismissal, amongst other claims, to the Employment Tribunal (ET).

ET Decision  

The ET found that his dismissal was unfair because DHL had not shown that the Claimant was aware of or trained on the company’s social medial policy and DHL had not asked him to remove the posts.

DHL had also failed to consider mitigating factors or alternative sanctions and there was little evidence of detrimental impact on DHL as a result of the posts.

The ET reduced the Claimant’s compensation by 10% for contributory conduct and ordered the Claimant be reinstated in their role.

EAT Decision  

DHL appealed against the remedy decision. The EAT ruled that the ET had been correct in finding the dismissal was unfair but had failed to apply the correct legal tests when assessing:

1. Contributory conduct – How much the employee’s own conduct had contributed to his dismissal. The ET had only considered that the Claimant publicised his grievance when it should have considered all relevant conduct including the tone and content of all posts and whether they reasonably contributed to DHL’s decision to dismiss.
2. Reinstatement – The ET had focused on whether it believed the relationship could be repaired,  when the correct test is whether the employer reasonably and genuinely believed trust and confidence had broken down.

What does this mean for employers? 

This case shows that, when considering dismissal for inappropriate social media posts, employers must follow a fair process, give clear reasons and have evidence that the employee was aware of the relevant policy.

Employers should ensure employees have seen, understood and been trained on their social media policy and that induction records and refresher training acknowledgements are signed and documented clearly.  Furthermore, employers need to demonstrate they have taken proportionate steps prior to dismissal, for example, in this case, DHL were criticised for not requesting the Claimant remove the post immediately.

Finally, employers should follow their disciplinary policy and consider the full context when investigating misconduct involving social media posts, including the tone and language used, audience reach, reputational impact and effect on colleagues. Investigations should also be thoroughly documented.

This case also strengthens an employer’s ability to resist reinstatement orders, as the EAT have clarified that the question of whether trust and confidence has broken down is looked at through the lens of what an employer reasonably believes.

For more information on these issues, please get in touch with a member of the Employment team.