Maxine Orr, Partner, considers a recent Employment Tribunal case relating to an employee's dismissal for certain comments made on Facebook
The use of Social Media like Facebook, Twitter, Instagram etc. permeates all areas of life and in particular the workplace. How employers deal with employee activities on Social Media both inside and outside the workplace can often be difficult. It is essential that employers have the requisite policies and procedures in relation to Social Media to ensure that disciplinary action can be taken. A recent case Employment Tribunal case in England considered whether a dismissal for comments made on Facebook was fair especially given that some of the comments related to conduct dating back a number of years.
Mr Smith worked for The British Waterways Board t/a Scottish Canals as a manual worker. He was part of a team that was responsible for the maintenance and general upkeep of Scottish canals and reservoirs working on a rota pattern which required him to be on standby for one week in every five.As part of an investigation into grievances raised by Mr Smith in the workplace against his supervisor, Mr McRoberts, Mr McRoberts had e-mailed HR on 22 May 2015 attaching copies of pages which were copied from Mr Smith’s Facebook.
These pages included comments made by the employee and to other employees referring to the supervisors in derogatory terms. The employer found his Facebook account and printed out anything work related and found comments stating “on standby tonight so only going to get half pissed lol”, “im on vodka and apple juice first time ive tried it no to shabby”. There was further reference to his supervisors in derogatory terms. Some of the comments dated back two years and his supervisor, Mr Mc Roberts, had been aware of their existence but had not taken any action.
The Claimant was investigated in relation to the comments on Facebook and attended a disciplinary hearing. He did not deny that he had made the comments and was dismissed for gross misconduct. The investigation report stated - “There is evidence that the trust between his employer and those managing him has been broken by remarks directed towards them and made public through his Facebook pages ... The remarks made were available for public viewing and therefore are likely to damage the reputation of his employer and manager. By publically making remarks about being under the influence of alcohol whilst on standby duty, he has declared this to be the case, which would be a risk to public health”.
The employer’s policy concerning e-mail and internet use stated that “Any action on the internet which might embarrass or discredit BW (including defamation of third parties for example, by posting comments on bulletin boards or chat rooms)…” is disallowed.
The Tribunal hearing the case felt that the decision to dismiss was unfair as the employer had not taken into account Mr Smith’s clean service record and the amount of time which had passed since Waterways had become aware of the comments. The reason the Facebook comments had been brought up now was in the context of a mediation process arising from grievances raised by Mr Smith.
The Employment Appeal Tribunal over turned this decision and found that the dismissal was fair. It stated that the decision was procedurally fair, sufficient investigation had taken place and that there was a genuine belief held of the employee’s guilt. By deciding that no reasonable employer would make this decision the Tribunal at first instance, had stepped into the shoes of the employer which it is not entitled to do.
Employers should always take advice professional legal advice before disciplining or dismissing employees.
Maxine Orr is a Partner in Worthingtons Commercial Solicitors Belfast specialising in Employment Law.