An employee was awarded over £28,000 after it was found that he was unfairly dismissed over social media comments. The judge concluded that there was no evidence that would have supported a reasonable employer in finding that the employee was engaging in a ‘prohibited discussion’ under the company social media policy. There were also a number of serious errors in how the disciplinary process was handled, including a lack of investigation.
The case of Austin v A1M Retro Classics Ltd highlights the importance of employers acting reasonably in relation to online conduct, just as they would do in any other case of misconduct, and ensuring that where disciplinary action is justified, that the matter is handled appropriately.
The Facts of the Case
The employee worked as a paint sprayer and had over five years’ service. The employee had a conversation with a colleague who mentioned some allegedly poor work had been done by the Company. This ultimately led to the employee initiating a discussion with the Managing Director about it. The discussion got very heated with the Managing Director becoming agitated and shouting at the employee.
That evening the employee went home and put a comment on Facebook, “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.” A number of people made comments on the posting – some were aimed at trying to reassure the employee, others were inappropriate including some homophobic comments and one which said the employee should punch the Managing Director in the face as it would help him feel better.
The Managing Director became aware of the Facebook posts and carried out a ‘minimal investigation’, getting help from the manager to download the comments. The Managing Director did not use Facebook himself or understand it. The employee was called into a meeting to ‘discuss his use of social media’ however, unbeknown to the employee, this was actually a disciplinary hearing. Following this the employee was dismissed for gross misconduct for breaching the social media policy, the dismissal letter referred to potential breach of equality legislation as well as damage to the business. After an unsuccessful appeal, the employee complained to the employment tribunal that his dismissal was unfair.
The judge agreed that the employee had been unfairly dismissed due to a number of points, including:
- The Managing Director and the manager who chaired the appeal “unreasonably confused” what was required by the employer’s social media policy. The policy did not prevent the employee from talking about his situation at work but required him not to engage in discussions that have ‘a particular effect’. There was no evidence that he had engaged in such a ‘prohibited discussion’.
- A reasonable employer could not have reached the conclusion that the employee was breaching equality legislation by starting a string of comments into which someone had injected offensive remarks, there was no evidence that the employee had replied to or agreed with the remarks and the Facebook group was not a public group. The social media policy did not require the employee to police the comments of others. With regard to the comments impacting the employer’s reputation, the judge found this “highly unlikely” having considered the employee’s Facebook settings, size of the group and the short time the post had been up.
- The investigation into the matter was flawed for reasons which included that the Managing Director had “made no effort at all to find out anything about the [Facebook] settings which the employee had, and had simply assumed a number of things, for example how big the group was”. In addition, if the employer was attempting a reasonable investigation into the matter the employer should have had regard to the social media policy.
- A fair disciplinary process was not followed – the employee was not given any proper notice of the disciplinary hearing, he was not given an opportunity to prepare for it, or any advance knowledge of what was being alleged against him in order for him to prepare any kind of defence against it.
The employee was awarded £28,560. This included a 20% uplift on the compensatory award due to the employer’s unreasonable failure to follow the ACAS Code of Practice on Disciplinaries.
Whilst dealing with matters involving social media can be particularly stressful for employers it’s important to keep things in perspective and to act reasonably. 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.
If it is appropriate to take disciplinary action, remember that a proper process should be followed. In outline, this will involve formally inviting the employee to attend a disciplinary meeting (with sufficient notice) and including copies of the evidence, holding the meeting, giving the employee a written outcome and right of appeal.
It’s important to seek advice on the facts of your case before taking any action. Remember Kingfisher Professional Services Ltd is here to help, we can provide practical guidance on investigations and throughout a disciplinary process as well as assisting with matters such as drafting disciplinary invitations.
If you have a disciplinary or other employment law matter you would like assistance with, please do not hesitate to contact us.