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No special rules for social media cases

Social-media-iconsThe Employment Appeal Tribunal in Scotland has held in The British Waterways Board v Smith that there are no special rules that apply in social media misuse cases.

Mr Smith was a canal worker who was required to be on standby one week out of five. When on standby, Mr Smith was not allowed to consume alcohol.

In May 2013 it came to light that Mr Smith had made derogatory comments about his supervisors on his Facebook page. Worse still, he had posted comments which indicated that he was consuming alcohol when on standby.

The employer’s policy in relation to email and internet use prohibited “any action on the internet which might embarrass or discredit” it. Mr Smith was therefore invited to participate in a disciplinary process and was subsequently summarily dismissed.

The disciplinary manager found that the comments about Mr Smith’s colleagues were highly offensive and inflammatory. He also regarded being on standby as a position of trust and found that as Mr Smith’s comments could be seen by members of the public, anyone reading them could lack confidence in Mr Smith’s capability and decide not to call him out. Mr Smith’s internal appeal was unsuccessful.

The Employment Tribunal found that Mr Smith’s dismissal was unfair.

It considered that the decision to dismiss fell outside the band of reasonable responses which a reasonable employer might have adopted. In particular, it was concerned that the employer had not considered: (i) any of the mitigating circumstances that had been offered; (ii) the fact that the comments had been made some two years earlier; and (iii) the fact that there had not been an emergency on the day in question.

On appeal, the Employment Appeal Tribunal held that the Employment Tribunal had strayed into substituting its own view for that of the employer. For that reason, the Employment Tribunal’s decision could not stand and the Employment Appeal Tribunal held that on the facts as found by the Employment Tribunal, the dismissal was fair.

It also confirmed that although this was a case involving the use of Facebook, “there is no need for special rules in respect of such cases. They fall to be determined in accordance with the ordinary principles of law applied in all cases.”

It is not a coincidence that the same conclusion was reached by the Employment Appeal Tribunal in England & Wales in Game Retail Limited v Law. In that case (which involved the use of Twitter) it was held that the test to be applied is “whether the employer’s decision and the process in reaching that decision fell within the range of reasonable responses open to the reasonable employer on the facts of the particular case. That test is sufficiently flexible to permit of its application in contexts that cannot have been envisaged when it was laid down. The questions that arise will always be fact-sensitive and that is true in social-media cases as much as others. For us to lay down a list of criteria by way of guidance runs the risk of encouraging a tick-box mentality that is inappropriate in unfair-dismissal cases.”

These cases confirm that allegations of social media misuse should be dealt with in the same way as any other allegations of misconduct.

In cases that may result in dismissal, disciplinary managers should be considering the following:

1. Is there a well-publicised social media policy in place which makes clear what is and is not acceptable and does the conduct in question fall foul of that policy?

2. Has there been as much investigation as was reasonable in all the circumstances?

3. Do I believe that the employee is guilty of misconduct and do I have reasonable grounds for my belief?

4. Is the decision to dismiss one that a reasonable employer might make?

Fiona Morrison Brodies LLP

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