How should employers respond to inappropriate Facebook comments?

Facts of the case:

Mr Smith commenced employment with BW on 1 April 2005 as a manual operative employed in the maintenance of canals and reservoirs. He worked a seven-day rota and was on standby for one week in every five. During the standby period he was not allowed to consume alcohol.

The BW social media policy prohibited “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)”. BW’s disciplinary policy cited serious breaches of its policies as an example of gross misconduct.

In 2012, one of Mr Smith’s supervisors alerted BW’s HR department that Mr Smith had posted negative comments on Facebook about them and BW. The HR department took no action at the time. In May 2013, Mr Smith raised a grievance regarding the behaviour of his supervisors. As part of the process Mr Smith’s supervisor provided the HR department with extracts from Mr Smith’s Facebook profile. The HR department investigated further and found more comments describing supervisors in derogatory terms and indicating that Mr Smith had been drinking while on stand-by.

Some examples are:

• “going to be a long day I hate my work”
• “that’s why I hate my work for those reasons its not the work it’s the people who ruin it nasty horrible human beings”
• “on standby tonight so only going to get half p***** lol”.
• “im on vodka and apple juice first time ive tried it not to shabby”
• “good old bw cant wait to see all my friends again lol”
• “why are gaffers such p*****, is there some kind of book teaching them to be total w******”

During the subsequent disciplinary proceedings Mr Smith admitted making the comments but said they were only ‘banter’ and that he had not actually been drinking on stand-by. Nonetheless, it was found that the remarks had the potential to undermine the confidence which other employees and the public had in BW, and that being under the influence of alcohol and making offensive remarks on Facebook were a clear breach of BW’s policy and amounted to gross misconduct.

EAT decision:

Mr Smith appealed unsuccessfully, following which he brought a claim for unfair dismissal before the employment tribunal (Tribunal). Initially the Tribunal upheld Mr Smith’s claim on the basis that the decision to dismiss him fell outside the band of reasonable responses that a reasonable employer might have adopted in the situation. However, the EAT overturned the decision and held that the dismissal was fair.

The EAT further confirmed that:

1. Comments posted on Facebook by an employee using his/her personal computer could be a matter which resulted in disciplinary action by his employer if the employer was mentioned.
2. There is no need for special rules in respect of cases relating to the misuse of social media and that the same legal principles of unfair dismissal will apply. This approach is consistent with the previous EAT decision of Game Retail Limited -v- Mr C Lawsin November 2014 which we reported on (to read the article in full please click here).

Comment:

This case highlights that failure to take immediate action in respect of misconduct will not necessarily prevent employers from relying on the misconduct in later disciplinary proceedings.

Since the usual principles of unfair dismissal will apply to cases regarding social media, a well-drafted social media policy will assist employers when addressing inappropriate social media activity, particularly if linked to the disciplinary policy. These policies must be communicated to employees and training on social media policies should engage employees in protecting the employer’s corporate image and reputation.

Merrill April