A recent decision by the Employment Appeal Tribunal (“EAT”) has highlighted the difficulties faced by employers when deciding on the right sanction to apply when an employee makes an inappropriate statement on social media.
In the case of The British Waterways Board v Smith, when the claim was first heard by an Employment Tribunal the claimant was found to have been unfairly dismissed. This decision was reached despite the employee having repeatedly referred to his supervisors in derogatory terms in a number of posts on Facebook and stating that he had drunk alcohol whilst on standby contrary to the company’s policy. He described this as “banter” and advised that his privacy settings had been hacked. The Tribunal concluded that the company had failed to take into account the claimant’s mitigating evidence as well as the fact that the comments were historic, therefore found the dismissal to be unfair.
However, upon appeal the EAT confirmed that the Tribunal had unlawfully substituted its own view for that of the company and the finding of unfair dismissal was overturned. The EAT noted that the company had followed a reasonable investigation and had grounds upon which to conclude that the employee was guilty of gross misconduct. In these circumstances the Tribunal was not at liberty to decide that the company should have placed greater weight upon his length of service and clean disciplinary record, or the fact that statements made on social media are often exaggerated, or simply untrue.
While this decision will be a welcome one for employers, frustratingly again the EAT has refused to lay down special guidance when considering misconduct arising out of social media misuse. This is despite the fact that these cases can be particularly tricky for employers as they often blur the boundary between the personal and professional life of the employee in question.
Although each case will necessarily have its own set of facts, relevant issues to consider when taking disciplinary action in these circumstances include:
- Is the company’s identity identifiable from the page in question?
- Were the posts made to a private set of friends, or were they public for all to see?
- Were the posts made during working hours?
Companies without social media guidelines should ensure that a policy is put into place without delay to ensure that all employees clearly understand their obligations to their employers, even when making comments on supposedly private sites. For a small initial outlay, this can be an invaluable tool when making tricky decisions, especially given the wide range of judicial decisions made in recent years on this topic.
By employment law & HR support solicitor, Martha McKinley