09.10.14 Social Media Dismissals

The case of Blue v Food Standards Agency adds to the growing case law on social media dismissals.

Mr Blue worked as a meat hygiene inspector for the Foods Standards Agency. Following the dismissal of two employees from their job in an abattoir, they made comments on Facebook about hitting their previous boss with a chair. Mr Blue, who still worked at the abattoir, commented on the Facebook post and ‘liked’ a comment that somebody else had posted. These comments were brought to the attention of management who passed the complaint on to their employer, the Foods Standards Agency. They claimed Mr Blue’s actions on Facebook were a “breach of trust” and unprofessional.

Mr Blue apologised and claimed that it was harmless “banter” privately amongst friends on Facebook. However, he was dismissed from his position after 20 years’ service.

Mr Blue raised an Employment Tribunal claim and the Tribunal found him to have been unfairly dismissed and awarded him £32,799.13. The Tribunal found Mr Blue had an exemplary record of performing his duties and therefore, there was no objective reason to believe that his performance in the future would be different because of a conversation he mistakenly believed would be private.

Although Mr Blue won his claim, he did not get his job back and due to the specialist nature of his job, he faces an uncertain future.

Misconduct arising from the misuse of social media should be treated in the same way as any other form of misconduct. The fairness of any subsequent dismissal would be determined in accordance with Section 98(4) of the Employment Rights Act 1996. An Employment Tribunal would determine whether the employer acted reasonably in treating the reason given for the employee’s dismissal as sufficient. Employers should adopt a common sense approach when faced with social media misconduct and should carefully consider the impact of the employee’s conduct on the business before taking disciplinary action. Tribunals will take the following factors into account when determining whether dismissal is an appropriate course of action;

• The nature of the employee’s job;
• The employee’s seniority;
• The seriousness of the alleged misconduct;
• The company’s social media policy;
• The nature of the employer’s organisation;
• The disclosure of confidential information;
• The risk of reputational damage to the employer;
• The likely impact on the employee’s job; and
• Mitigating factors, for example, the employee’s service record.

This case serves as a warning to employees to be careful when using social media. Employers should ensure that there is a clear Social Media Policy in place, including out of work use, so that employees are aware of what is acceptable and what behaviour is prohibited and managers can act consistently in line with the policy.

Have you had any Social Media misconduct within your company? Do you have a Social Media Policy in place?  Call Aspire Business Partnership on 0121 445 6178 or email enquire@aspirepartnership.co.uk for further advice on this topic.