A recent employment tribunal case emphasised that dismissal based on an employee’s social media posts may prove costly.
To be precise, the employer was ordered to pay £28,560 after this case was heard at Newcastle Upon Tyne Employment Tribunal.
The facts of this case are straightforward. The claimant was employed as a paint sprayer by a dealer in classic cars. He once had a heated telephone conversation with the managing director of the company over how the business should be run. Soon, the employee posted the below on his personal Facebook account:
“I don’t think I’m a bad person but I don’t think I have ever felt so low in my life after my boss’s comments today.”
This post provoked a number of comments, which were detrimental to the company and its business. One commentator referred to the general manager, a gay man, as “shirt-lifter”, amongst other homophobic remarks. Another commentator suggested “the boss should be punched in the face to make the employee feel better.”
Naturally, the employer was unhappy with this social media coverage. The employee was called to a disciplinary meeting and, consequently, dismissed. The dismissal decision was upheld on internal appeal. A social media policy was in place and was referred to in the disciplinary process.
Still, the dismissal was ruled unfair by the tribunal and the employee was awarded a favourable sum.
Initially, the tribunal looked into the employer’s social media policy. It turned out the policy was not very helpful to the employer as it regulated the type of posts and comments an employee of the company should not be making. The policy did not contain a general prohibition on publishing materials relating to situations at work; not that such blanket prohibition would be handy, as it may infringe on the employee’s freedom of expression. Crucially, the policy said nothing about the comments made in response to the employee’s initial post. As the tribunal said, “the employee was not required to police the conversation.”
The tribunal was prepared to accept the employee may have acted improperly in letting the Facebook situation develop. However, no investigation was carried out to establish who could see the posts (selected groups or the general public), the size of said group or whether any colleagues or customers actually saw the post and possibly left any comments. The social media policy was also silent on what privacy settings should be used for posts mentioning work.
The social media policy and the investigation were obviously inadequate. Following from this, dismissal was not a reasonable response to the employee’s Facebook post. The tribunal also commented the company could have asked the employee to remove the post and the following discussion in the first instance.
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The employer’s response was tarnished by other procedural breaches which included not giving enough notice to the employee to prepare for the meeting, the disciplinary nature of the meeting and the allegations not being explained properly nor the right to have a companion present.
In the age of social media, it is not exceptionally rare for a disgruntled employee to vent frustration on social media platforms instead of using the correct channels. What action the employer should take in response needs to be carefully considered. A social media policy will be helpful if appropriately worded. Investigation should not be skipped or rushed through. Lawgistics, of course, will be able to guide you through these steps.
