08 Feb 2016

Can comments on social media get me sacked?

Can comments on social media get me sacked?

 

Having a rant about a boss or supervisor is common in most workplaces.

However, the explosion of social media channels has changed the way we communicate - and as a result, what used to be a private gripe can easily become a public one.

But can a comment made on social media get you sacked? In certain cases, the answer is yes.

What do the Employment Tribunals say?

A recent Employment Appeal Tribunal (EAT) considered the case of a man who had made a number of uncomplimentary comments about his employer on social media.

The man involved worked for the British Waterways Board (BWB) in a department responsible for maintenance of canals and reservoirs. He was required to be on ‘standby’ for one week in every five as per the BWB rota.

During the standby period employees are not allowed to consume alcohol. However, in late 2012 the Human Resources team at BWB were made aware of derogatory comments made by the Claimant aimed at his supervisor on Facebook. 

Upon reviewing his newsfeed, they found remarks dating back to 2011, where he talked about drinking while on standby, saying he was drinking vodka and apple juice and that it was "no too shabby".

BWB’s social media policy stated that the organisation did not allow “any action on the internet which might embarrass or discredit BWB (including defamation of third parties for example, by posting comments on bulletin boards or chat rooms)”. 

The worker admitted to making the comments, however, he argued that these were just ‘banter’ and he had not been drinking whilst on standby. BWB decided that the comments were sufficient evidence to undermine their confidence that employees, and the public, would have in BWB’s ability to react to emergency situations.

BWB confirmed it felt the comments were a clear breach of policy and they had undermined the trust and confidence in the claimant and the man was ultimately dismissed.  He raised a claim for unfair dismissal.

Appeal thrown out

The employment tribunal originally sided with the man stating that BWB had failed to consider mitigating factors such as the claimant’s unblemished employment record. Furthermore, there had been no emergency whilst the claimant was on standby and therefore the drinking element had not been a problem that affected BWB.

However the  EAT overturned that decision on appeal. It found that in the circumstances BWB’s decision had been within the band of reasonable responses open to the employer and that the dismissal was fair.

Analysis

Sally-Anne Ogilvie, Employment Law Partner at Aberdein Considine, said that this highlights the importance of employers having a robust and up to date social media policy in place.

"It is clear that as people continue to vent on social media and outside the workplace case law will continue to expand in this area," she said.

"The current case law is still developing and is very much fact specific with each case being construed and decided based on its own merits.

"It is important that employers have a social media policy in place for handling such scenarios and ensure employees are aware of those standards of conduct expected."

If you would like to speak to Sally-Anne or a member of the Employment Law team at Aberdein Considine, call 0333 0044 333 or click here.


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