27/10/2025
An optical adviser at Asda who revealed the name and Facebook profile of a colleague to customers who wished to make a complaint about them was unfairly dismissed, a tribunal has ruled.
Two customers described the staff member who they wished to complain about to the claimant, Jordan Wainwright, who then showed them his colleague’s profile on Facebook.
Following an investigation, Wainwright was dismissed without notice for gross misconduct, the Leeds tribunal.
However, the tribunal found that there were “significant failures” in Asda’s investigation, noting that Wainwright was not given an opportunity to respond to the conclusion that his actions were done maliciously with the intent of getting his colleague into trouble.
The tribunal concluded Wainwright had been unfairly dismissed but also determined that there was a 25 per cent chance that Wainwright would have been fairly dismissed regardless.
It decided that, as a result of the claimant’s “blameworthy conduct” before dismissal, any basic or compensatory awards will be reduced by 50 per cent. The tribunal will determine the final remedy at a subsequent hearing.
Background ⚖️
Wainwright began working as an optical adviser at Asda’s Killingbeck store on 23 May 2018. He attended induction training on his first day, which included training on the Data Protection Act.
On 6 September 2024, two customers asked Wainwright’s manager, Mr Marshall, how they could give positive feedback about Wainwright. Marshall gave the customers Wainwright’s full name, alongside the email address and phone number for Asda House, the head office.
The same customers later asked Wainwright to identify another member of staff who had processed their order, saying they wished to complain directly to head office rather than through a manager.
The customers described the staff member who they wished to complain about, and Wainwright told them the description matched his colleague, Mandy. Using his personal phone, he searched Facebook and showed the customers her publicly available profile picture, also writing down her name.
The tribunal clarified that Wainwright only displayed publicly viewable information and was not Facebook friends with Mandy.
A colleague of Wainwright’s reported his actions to Kalid Cook, foodhall trading manager. He was suspended on full pay from 6 September while an investigation took place.
An investigation meeting was held on 16 September, during which Wainwright was informed that the purpose was to look into a potential GDPR breach.
The tribunal heard that Wainwright had not been given a copy of Asda’s new disciplinary policy in January 2024, or received any training on its contents. He also had not been provided with any training on the data protection policy since his induction, despite the fact that, since then, new data protection laws had come into force – the Data Protection Act 2018 and the General Data Protection Regulation (GDPR).
The investigation chair, Abdul Sheraz, showed Wainwright CCTV footage of the incident, and he confirmed he had shown the customers Mandy’s public Facebook profile pictures and written her name down for them. Wainwright said he had done so to ensure the wrong person did not get in trouble.
Wainwright was told that sharing personal information to a third party without consent could be seen as gross misconduct. He said he now understood the implications of his actions, but that it was done with good intention. Wainwright added that it would not happen again and apologised.
At the second investigation meeting on 30 September, Sheraz told Wainwright that a disciplinary manager would make a decision about the outcome of the allegation. He said in his summary of the meeting: “Jordan well and truely [sic] believes he made the right decision to share info even though he doesn’t normally do it this way. Jordan was apologetic but did not realise or show remorse for the serious nature of the allegation.”
A disciplinary meeting took place on 9 October. Wainwright revealed in the meeting that all his colleagues, except one, had deleted him from Facebook, following an incident in which Wainwright felt his colleagues had targeted him because of his sickness absence.
Wainwright was asked if he was aware of Asda’s social media policy. He said he knew there was one but did not know what was in it. His trade union representative, Michelle Hunt, requested a copy of Wainwright’s training records and Sian Mistry, who conducted the meeting, said she would try and obtain a copy. However, the tribunal heard that she did not do this prior to making her decision on whether to dismiss Wainwright.
Mistry also failed to ask Wainwright whether he shared both the first and last name of the colleague, making the assumption that he had given the customers both.
Mistry ultimately dismissed Wainwright without notice for gross misconduct. The meeting notes set out that the decision was based on his “misuse of personal or business information, including using or sharing such information for personal gain or sharing with [a] third party without permission”.
The tribunal heard that Mistry’s decision was also based on her opinion that Wainwright's actions were “malicious” and done with the aim of “sabotaging” his colleagues.
Wainwright appealed the decision, and a hearing eventually took place on 13 March 2025. Kevin Charlston, operations manager, upheld the decision to dismiss Wainwright, agreeing with Mistry that he was trying to get his colleague into trouble.
Judge’s comments ⚖️
Employment judge Edwards found that there were major procedural flaws in Asda’s handling of the case, noting that Wainwright was not given an opportunity in the investigation, disciplinary or appeal meetings to comment on the allegation that his behaviour was “deliberately designed” to get his colleague into trouble.
“That finding was not included in the disciplinary outcome letter and the claimant was not aware that it was a key element in the decision to categorise his behaviour as gross misconduct or the decision to dismiss him until he received Mistry’s witness statement as part of these proceedings,” the judge said.
Edwards highlighted that Mistry had come to this conclusion because Wainwright had shown the customers his phone “discreetly” and because his union representative had referenced difficult relations with his colleagues, including the fact they had deleted Wainwright as a friend on Facebook.
Mistry also failed to review Wainwright’s training records or give him an opportunity to review the records and comment on what training he had received. She accepted that the policies were confusing and that Wainwright may not have been aware that his conduct could have resulted in dismissal because it had been six years since his induction training.
Additionally, Wainwright was never asked whether he shared the first or last names of his colleagues.
“As a result of the failure to investigate significant factors that could have made a substantive difference to the respondent’s belief that the claimant’s actions amounted to gross misconduct, the genuine belief in his gross misconduct was not held on reasonable grounds,” the judge concluded.
They added that Mistry should have taken into account “mitigating factors” like Wainwright’s apologies and admission of his actions, finding that the sanction of summary dismissal was not within the range of reasonable responses.
“I find that, on the information available to them at the time of dismissal, no reasonable employer would have found that the claimant was acting maliciously,” Edwards added.
Lawyer’s comments ⚖️
Jo Mackie, employment partner at Michelmores, said the case “highlights the importance of following a fair disciplinary procedure and the need to take legal advice when conducting disciplinary hearings”.
She explained that the judge had not asked “pertinent questions” about Wainwright's intentions or extent of detail he provided when naming his colleagues, and therefore concluded that no reasonable employer could have deemed his actions maliciously.
“It follows that no reasonable employer could have found gross misconduct, and the decision to summarily dismiss was not therefore in the range of reasonable responses.”
Mackie advised that employers should ensure they ask the right questions during an investigation. “Even if the claimant appears to have a very weak case, establish as much evidence from them as possible and allow them to have their say (within reason),” she said. “Failure to do so will mean the employer is acting without the whole picture and cannot therefore be objective, fair or reasonable.”
She added employers should ensure they follow their policies and ensure they are regularly reviewed and updated to align with employment law changes, saying: “This case is a very good lesson in the importance of following a fair process and not just ticking a box without going through the details.”
