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Dismissal for Defamation was Unfair

An employee who was dismissed for defaming his employer after making comments online about how he had been treated at work has won his unfair dismissal claim.

The case of O’Brien v Scentomatic highlights the importance of employers acting fairly and appropriately in relation to online actions and ensuring that a fair process is followed.

It’s worth bearing in mind that even though the employer in this case was a very small company and the judge commented that he was not judging it against high standards, they were still ordered to pay an uplift on the compensatory award of 20% for their failure to follow the ACAS Code of Practice on Disciplinaries. The judge commented that he had given serious consideration to ordering a 25% uplift but did not do so due to the unprecedented nature of the stresses to a very small business caused by the pandemic.

The Facts of the Case

The employee was employed as a sales consultant in a perfume shop. Outside his employment he had an online presence in the perfume and fragrance world including a Facebook page and a YouTube channel with 22,000 followers. Some of the employers’ customers were his followers.

When all non-essential retail was required to shut down at the start of the pandemic the employer agreed with the employee that he was to be put on the government furlough scheme. There was a disagreement about the employee returning the shop keys with the employer wishing the employee to drop them off at the shop due to security concerns about posting them and the employee resisting as he did not want to go against government requirements and make what he considered was a non-essential journey. Twenty minutes after the employee’s email agreeing to furlough, the employer emailed him withdrawing it.

The same day the employee was told he was not being dismissed but laid off only to be told shortly after he was being given notice of termination. The employee cancelled his pre-planned Facebook Live Stream commenting on his Facebook page that he had just lost his job and adding “ I won’t go back, not after the vile way I was treated today. Horrendous! New horizons for me.” The employer later received an abusive email from a third party and believed the employee had spoken negatively about the business. The employer wrote to the employee requiring correction of offending statements and reserving the right to issue proceedings for defamation. The employer subsequently wrote to the employee dismissing him for gross misconduct during his notice period for acts of defamation and disengagement. The employee complained to an employment tribunal that he had been unfairly dismissed.

The judge agreed that the employee had been unfairly dismissed, finding that:

  • The employee had been dismissed for making defamatory statements – that is untrue statements. There were not reasonable grounds for the employer to believe that the employee had defamed the company at the time of his dismissal. The employee’s post expressed his judgement about how he had been treated and that it was understandable that he perceived he had been badly treated in the circumstances. The dismissal was unreasonable.
  • There was no investigation or disciplinary process followed before the employee was dismissed. The judge commented that “there were no exceptional circumstances justifying a wholesale dispensation with procedure. This was a case crying out for proper investigation to get to the bottom of allegations and give the employee a chance to respond.”

Kingfisher’s Advice

Whilst online conduct by employees can be emotive it’s important for employers to maintain perspective and to act reasonably and appropriately if issues arise.

If an employee makes an inappropriate posting of some kind that impacts your business, their role or that employee in the workplace, remember that online misconduct should be treated in the same way as ‘off-line’ misconduct. The starting point for dealing with the matter in most cases will be to carry out a thorough investigation to determine what action, if any, is appropriate in the circumstances.

When it comes to minimising the risk of inappropriate posts on social media, having a social media policy in place can help. Sometimes employees make postings without considering the effect it could have and whether it could impact on them in the workplace. A social media policy can be a good tool to remind employees about what conduct is unacceptable and to consider their actions before making a post.

If you have an employment law matter you would like assistance with or you would like a social media policy for use in your organisation, please do not hesitate to contact Kingfisher Professional Services Ltd as we are happy to help.


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