Social Media and Unfair Dismissal

There have been a growing number of cases in recent years which have focused on dismissal in circumstances where employees have posted offensive or derogatory remarks on private social media accounts.  Contrasting outcomes have been delivered and Employment Tribunals struggle to balance the rights of an employee to express their opinions on private accounts, against the rights of the employer to protect its reputation and its staff.

In a recent case before the Employment Appeals Tribunal (EAT), the Judge was required to assess the fairness of a dismissal of a manual worker with 8 years of service.  The individual worked a rotating shift pattern and, on one week in every five he was not permitted to consume alcohol as he was placed on stand-by.

As part of a grievance raised by the employee in 2013 the employer found evidence on his social media account that he had been drinking whilst on stand-by, in clear breach of the company’s express policy on the same.  It transpired that the employee’s manager had been aware of this since some two years earlier and had raised the matter with HR without any further action being taken.

On further examination of the employee’s social media account, the employer found at least 10 further remarks which were of concern.  Many of these comments reflected the employee’s unhappiness at his job in general, but some made derogatory remarks concerning his manager and colleagues.   Further posts also suggested that he had again been drinking in breach of the company’s policy.

The employee was eventually dismissed for making derogatory remarks about his employer, for breaching the company’s policy on drinking at work and for placing the company’s reputation at risk.

Following an unsuccessful appeal, the employee presented a claim to the Employment Tribunal and it was held in the first instance that the employee had been unfairly dismissed.  Whilst there was clear misconduct, the Tribunal found that the employer had failed to take into account mitigating factors such as the employee’s previous good record and length of service.  It appeared that the allegation that he had been drinking alcohol in breach of the company’s policy was not particularly serious, as there was no impact on the business or his colleagues on the night in question.

The employer appealed and was successful in this appeal.  Perhaps surprisingly, the EAT did not criticise the employer for dismissing partly in relation to an allegation which it had known about for two years.  Furthermore, the further evidence only came about as the employer seemed to have tried to find examples of misconduct to avoid dealing with the grievance and to dismiss the employee.  Employers are now being given more latitude in these respects, but it is clear that the company succeeded in defending its position by having a robust and comprehensive Disciplinary Policy and Social Media Policy.  It is crucial that these are implemented and communicated within the business so that they can be relied on in case there is any breach by an employee.