Employment Law News

Be careful what you say about your workplace and work colleagues as there are NO special rules for social media misconduct

A recent decision of the Employment Appeal Tribunal (EAT) confirms that no special rules apply when dismissing an employee for misuse of social media. Rather the test remains simply whether the decision to dismiss was within the band of reasonable responses open to the employer.

 

In the case of The British Waterways Board trading as Scottish Canals v Smith, Mr Smith was sacked by Scottish Canals when comments he had made on Facebook two years earlier were emailed to human resources. Those comments contained extremely derogatory language about his managers and implied that he had been drinking whilst on emergency standby, which was not permitted. Following an investigation and disciplinary hearing, Smith was dismissed for gross misconduct. He complained he had been unfairly dismissed because the comments were not true and he had never been drunk on standby. He also said he had thought his privacy settings were private and that if he had known the comments would be accessible to the public he would not have posted them.

 

The Employment Tribunal agreed with Mr Smith and concluded that he had been unfairly dismissed because the employer had not taken into account that he claimed his comment about drinking on standby was mere ‘banter’ and was untrue. It also felt that any breach of trust had been ‘repaired’ by Mr Smith having carried out his duties without incident in the two years since he posted the comments.

 

On appeal by the employer, the EAT overturned the Employment Tribunal’s decision and found that the dismissal was fair. It reiterated that, as with any other conduct dismissal, the test is simply whether or not the decision to dismiss was within the band of ‘reasonable responses’ available to the employer. If it was, then the dismissal would be fair, regardless of whether or not the tribunal itself might have come to a different conclusion. Even though in this case the employer had deliberately searched for evidence against the employee and had known about the employee’s earlier act of misconduct for some time without taking swift action, the dismissal was still fair. The employee’s privacy settings were not considered to be crucial given the ease with which private communications can be transmitted onwards.

Whilst the EAT declined to give any specific guidance to employers on how to deal with dismissals for misuse of social media, it is clear that employers dealing with social media misconduct should:

1.    Have a considered social media policy in place which has been communicated to staff. The policy should make it clear that misuse of social media, whether at work or at home, may be regarded as gross misconduct.

2.    Investigate any complaints thoroughly.

3.    Follow a fair procedure.

4.    Give the employee a chance to respond to the allegations at a properly convened disciplinary hearing.

5.    Consider carefully everything the employee says in mitigation.

6.    Come to a genuine belief based on reasonable grounds.

7.    Give the employee the right to appeal.

You can read about the case here: http://www.bailii.org/uk/cases/UKEAT/2015/0004_15_0308.html