An EAT judgment that exposes the uneasy frontier between employee expression, employer control, and the limits of reinstatement
Some cases arrive at the Employment Appeal Tribunal like a slow‑burning fuse. DHL Services Ltd v Ignatowicz [2026] EAT 74 is one of them: a dispute that begins with a frustrated warehouse worker posting his grievance on Facebook and ends with a forensic examination of contributory fault, reinstatement, and the uncomfortable question of how far an employer must tolerate an employee’s public outbursts.
The Case in Context: A Modern Parable of Social Media and Employment Law
The story begins in a familiar place: a worker, disappointed by a failed internal job application, turns to Facebook to vent. But Pawel Ignatowicz’s posts were not the usual gripes. They were sprawling, quasi‑political, sometimes religious, sometimes conspiratorial, and occasionally threatening. One post declared that “capitalist dictatorship is evil and has to be destroyed”; another hoped that God would “destroy [his] enemies”; another warned scammers and “other enemies” that they had “diged the graves for [their] own children.”
The Employment Tribunal (ET) found these posts troubling but ultimately concluded that DHL’s dismissal was unfair. Why? Because the employer’s process was sloppy, the policies unclear, and the investigation superficial. The ET ordered reinstatement and applied only a 10% deduction for contributory conduct.
The EAT, however, took a very different view.
1. The Tribunal’s Errors: A Failure to Grapple With the Real Issues
The EAT’s judgment is, in essence, a polite but firm dismantling of the ET’s reasoning. The ET had treated the case as if it were a simple matter of an employee posting a grievance online. But the EAT emphasised that the posts were not merely reproductions of a grievance—they were embellished with inflammatory language, historical analogies involving massacres, and repeated references to “enemies” being destroyed.
The ET’s first major error was its superficial treatment of contributory conduct. It focused only on the fact that the grievance had been posted publicly, ignoring:
- the additional inflammatory language (“capitalist dictatorship is evil and has to be destroyed”)
- the 9 June post invoking God to destroy his enemies
- the 15 July post warning that enemies had dug “the graves for [their] own children”
- the August posts threatening to repost everything unless reinstated
- the later litigation‑related comments comparing managers to Nazis and “satanic bitches”
The EAT held that the ET should have analysed each of these posts separately under the two statutory regimes:
- s.122(2) ERA (basic award): conduct before dismissal, whether or not known to the employer
- s.123(6) ERA (compensatory award): conduct that caused or contributed to the dismissal
The ET had done neither properly.
2. Reinstatement: The Tribunal’s Second Major Misstep
Reinstatement is the most intrusive remedy an employer can face. It requires the tribunal to consider:
- Does the employee want reinstatement?
- Is reinstatement practicable?
- If the employee contributed to their dismissal, is reinstatement just?
The ET had treated reinstatement as if it were simply a matter of logistics—could DHL physically put him back in the warehouse? Yes? Then reinstatement is “practicable”.
But the EAT reminded the ET of a crucial principle: practicability is not about logistics; it is about trust and confidence.
The ET had failed to ask the key question:
Does the employer genuinely and rationally believe it can no longer trust the employee?
Given the posts comparing managers to historical mass murderers, invoking divine destruction of enemies, and later calling managers “satanic bitches”, the EAT found it astonishing that the ET had not engaged with the trust issue at all.
The ET had also wrongly treated contributory conduct as relevant only to practicability, rather than to the separate statutory question of whether reinstatement would be just.
3. The EAT’s Core Message: Social Media Misconduct Must Be Taken Seriously
The EAT’s judgment is not a moral condemnation of Ignatowicz. It is a legal correction. It emphasises that:
- Social media posts are not insulated from employment consequences.
- Tribunals must analyse each post individually.
- Threatening, abusive or destabilising language—even if not naming the employer—can legitimately undermine trust.
- Reinstatement is exceptional, not a default remedy.
The EAT also flagged an issue the ET had ignored entirely: the qualified right to freedom of expression under Article 10 ECHR. This will now have to be considered on remission.
4. The Human Dimension: A Worker in Distress, an Employer Out of Its Depth
One of the striking features of the case is the claimant’s evident distress and disorientation. His posts reference “paranormal occurrences”, conspiracies, and divine intervention. He appears to have been struggling with cybercrime victimisation and mental health issues. The ET was sympathetic to this context.
But sympathy cannot replace legal analysis.
The EAT’s judgment implicitly recognises that employers are not mental‑health professionals. They must make decisions based on workplace safety, reputation, and trust. When an employee publicly posts material that colleagues find frightening or destabilising, the employer’s concerns are not irrational.
5. What Happens Next?
The case is remitted to the same ET, but with a very different task:
- Reassess contributory conduct properly
- Reassess reinstatement in light of all posts, including those made during litigation
- Consider Article 10 freedom of expression
- Evaluate whether DHL can genuinely and rationally trust the claimant
Given the later posts involving violent imagery and abusive language, the prospects of reinstatement now appear remote.
Conclusion: A Case About Boundaries—Legal, Personal, and Digital
DHL v Ignatowicz is a modern employment‑law parable. It sits at the intersection of:
- employee free expression
- employer reputation
- mental health
- social media’s porous boundaries
- the limits of reinstatement as a remedy
The ET had treated the case as a simple unfair dismissal. The EAT recognised it as something more complex: a breakdown of trust fuelled by online behaviour that the employer could not reasonably ignore.
In the end, the judgment is a reminder that employment relationships are built on confidence—and that once confidence is shattered, tribunals cannot simply will it back into existence.
By Pat Harrington
