Can you dismiss an employee for posts on Facebook during personal time?
Social Media is a developing area of technology in itself and as more and more people are engaging with social media the instances of issues arising in the Employment Tribunal is increasing. There are no hard and fast rules about how the employment relationship and social media platforms such as Facebook should be dealt with so each time there is a reported case, and particularly a case in the Employment Appeal Tribunal, it makes interesting reading and sparks the debate once again.
In order for a dismissal to be fair employers must have one of five potentially fair reasons to dismiss:
- Capability or qualifications
- Some other substantial reason
Employers must follow a fair procedure in dismissing an employee and must do so reasonably.
This means that even if there is a fair reason (one of the five above) an employer must satisfy a second test for fairness which will depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and this shall be determined in accordance with equity and the substantial merits of the case (Section 98(4) Employment Rights Act 1996).
In this Unfair Dismissal case the employee, Mr David Smith was employed by British Waterways Board (the ‘Employer’) as an operative. He was employed on a 7 day rota and was also on a standby rota for 7 days. The standby period for Mr Smith was one week in five. During the standby period employees were not allowed to drink alcohol (in case they were called upon to work).
During the period March 2012 – May 2013 Mr Smith raised various issues with the Employer about Health and Safety at work and various grievance issues he had. Mr Smith also made complaints about his team leaders Mr McRoberts and Mr McLeod.
The complaints culminated in a meeting being arranged in May 2013 to discuss the issues. However before the complaints could be heard Mr Smith was suspended following disciplinary allegations.
The allegations about Mr Smith had come from posts found on his personal Facebook profile which Mr McRoberts had found and passed to the Employer. The comments included various derogatory things about his supervisors and the Employer.
An investigation was undertaken and comments noted on Mr Smith’s Facebook account which made reference to drinking whilst on standby duty. Some of the Facebook comments are offensive and so I will not repeat them here but you can read them in the full Judgement by clicking here.
Mr Smith denied that he had been drinking and described the comments as ‘banter’ which went on between colleagues regularly. He referred to a running joke against the person who was on standby at the time.
Following the investigation and disciplinary hearing Mr Smith was dismissed for gross misconduct. The Employer was concerned that Mr Smith’s behaviour would undermine confidence in the organisation and stating he was drinking on a public forum during a standby period was sufficient to do this.
Around the same time two colleagues were given varying degrees of warnings for comments made on Facebook, however neither of them had stated that they were drinking whilst on work time.
Mr Smith claimed unfair dismissal and also alleged that he had been dismissed due to protected disclosures he had made to the Employer about health and safety, he claimed that it was not a coincidence that he was suspended at the same time that he was due to have a grievance meeting.
The Glasgow Employment Tribunal considered Mr Smith’s claims and the defence submitted by the Employer.
It was noted that the Employer’s policy regarding ‘Email and Internet Use’ stated;
‘The Following activities may expose British Waterways and its employees, agents and contractors to unwarranted risks and are therefore disallowed;-
– Any action on the internet which might embarrass or discredit British Waterways (including defamation of 3rd parties, for examples posting comments on bulletin boards or chat rooms). ‘
Although not explicit reference to personal use of Facebook or Social Media this was sufficient for the Employer to rely on and the Tribunal accepted that posting on personal Facebook during personal time could result in disciplinary action.
The Tribunal decided that the Employer had a potentially fair reason for dismissal, had carried out a reasonable investigation and had a genuine belief in the reason based on reasonable grounds. However, despite this they decided that the dismissal was unfair, as the decision was outside of the ‘band of reasonable responses’, because the Employer had not considered sufficiently the mitigation put forward by Mr Smith, of which there were 8 particular things.
The Employer appealed against this decision on the basis that the Tribunal had substituted their own view for that of the Employer in reaching their decision.
The Employment Appeal Tribunal examined the decision making of the Tribunal and concluded that the Tribunal had substituted their own view for that of the Employer, and they placed weight on matters which were not by the Employer. They stated that having reached a conclusion that the investigation was reasonable and that the Employer had a genuine belief in the allegations it followed that the decision to dismiss was fair.
The Employment Appeal Tribunal were satisfied that it was fair for the Employer to dismiss Mr Smith in these circumstances and the decision was reversed.
Points to note
This is an interesting decision and shows that where employees are making remarks on their own social media accounts that could effect the reputation of your business you can take action.
Currently each case will depend upon the facts but the key points to note in this case are:
- Mr Smith’s Facebook account was available to view by the public. There was no security set on it. Interestingly in the course of the case Mr Smith stated that he believed that he had been hacked and the security setting changed.
- The Employer had something, albeit not explicitly relating to social media, in their policies and handbook.
- The comments made by Mr Smith could have had a serious impact on the reputation of the Employer.
What action do you need to take?
- Check your Contracts, Handbook and Policies to see if you have something to cover Social Media;
- If you do have something remind employees of its existence periodically and ensure they are aware of the requirements;
- If you do not have anything in writing get something drafted;
- If your business reputation online is of particular importance consider adding the following clause to your employment contracts ‘You are not permitted to use any social media/networking platform during working time. Further, you are specifically not permitted to make any reference to the Company or any work colleague on any social media/networking site(s), whether in work or personal time. You should be aware that in such event, this could result in disciplinary action up to and including termination. Careful judgement should be exercised, giving consideration to the impact that your online activities may have on your employment. Any content posted by you on any social media network which could damage the reputation of the Company will result in disciplinary action and possibly dismissal.’
- If you want to make changes or have concerns about the effect on your business contact me for a free initial discussion – 01983 89700, 023 8098 2006 or email [email protected]
British Waterways Board v Smith – Employment Appeal Tribunal
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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.
The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.