X marks the spot for unfair dismissal

Ireland’s Workplace Relations Commission (WRC) recently had to consider a case of unfair dismissal raised by Mr Gary Rooney against Twitter (now known as X). 

In his claim, Mr Rooney detailed that after acquiring Twitter in November 2022, Elon Musk sent a company-wide email stating that employees needed to be ‘extremely hardcore’ going forward – this required ‘only exceptional performance’ and ‘working long hours at high intensity’.

The email went on to say: ‘If you are sure that you want to be part of the new Twitter, please click yes on the link below’. Those who did not click the ‘yes’ link by 5pm the next day were deemed to have resigned and would receive three months’ severance pay. Mr Rooney did not click ‘yes’ and his termination was processed. 

Twitter argued that his failure to click ‘yes’ meant he had voluntarily resigned (along with 35 others who did not respond) but Mr Rooney disputed this. 

The WRC agreed with Mr Rooney and held that the dismissal was unfair, stating that being asked to click a link in an email within 24 hours was not ‘reasonable notice’. He was awarded €550,131 in total to compensate for past and future loss of earnings.

In the UK, an employee can bring a claim of unfair dismissal so long as they have one year and 51 weeks’ service on the date they are dismissed. For a dismissal to be fair, an employer must show that they had a ‘potentially fair’ reason. The potentially fair reasons for dismissal are set out in section 98 of the Employment Rights Act 1996 (ERA). 

These are: 

1. Capability or qualifications; 
2. Conduct; 
3. Redundancy; 
4. Contravention of a duty or restriction imposed by law; or 
5. Some other substantial reason (SOSR)

If a potentially fair reason for dismissal can be established, consideration then turns to whether the employer acted reasonably in dismissing the employee for that reason. This is sometimes referred to as the ‘band (or range) of reasonable responses’ test. This test is designed to acknowledge that, when managing employees, employers have a range of responses open to them – one employer might reasonably take one view of a situation (e.g. by dismissing an employee), and another employer might reasonably take a different view of that same situation (e.g. by issuing a final written warning). 

A dismissal will only be unfair if it can be shown that no reasonable employer would have dismissed the employee in the circumstances. 

This case was decided in Ireland, so the law is slightly different. However, the highly unusual facts of this case mean Mr Rooney would likely have similarly strong arguments to persuade a UK Employment Tribunal that his dismissal was unfair. However, any compensation he would be awarded for unfair dismissal alone would be capped at the lower of one year’s salary or £115,115. 

If you require any advice on unfair dismissal, contact our Employment Team.