A robust social media policy is essential for protecting employers during disciplinary action, Tom Stenner-Evans, associate in the employment team at law firm Michelmores, has advised.
Stenner-Evans’ comments follow an employment tribunal this month regarding an unfair dismissal appeal made by David Smith, who was fired after posting offensive comments on Facebook. The employer Scottish Canals (then the British Waterways Board) argued that it was fair to dismiss Smith, despite the fact that he posted the comments in 2013.
The Employment Appeals Tribunal (EAT) found in favour of the employer. This was in no small part because the British Waterways Board had a social media policy defining such a breach as gross misconduct, said Stenner-Evans.
“Smith was dismissed for posting some fairly derogatory comments about his supervisors, which were quite graphic and inflammatory, and also for claiming he had been drinking while on standby a couple of years previously,” Stenner-Evans told HR magazine. “He was subsequently dismissed on the basis of what he had written, as it amounted to a serious breach of social media policy. That was considered to be gross misconduct.
“This is another social media case where the existence of a social media policy that states a breach is a gross misconduct issue really helped,” he added. “If it [British Waterways Board] hadn’t had that policy in place I think it would have had real difficulty in convincing the EAT to find in its favour.”
Stenner-Evans warned that companies must clearly differentiate between what constitutes misconduct and gross misconduct.
“There have been other cases where similar dismissals have been found to be unfair because a social media policy said that a breach would result in normal misconduct rather than gross misconduct,” he explained. “This shows the importance of having the right wording in your policies.”
Despite the fact that the posts the British Waterways Board objected to were made in 2013, Stenner-Evans said that it is not best practice to wait to discipline an employee if adverse social media behaviour is spotted.
“The HR manager said at the tribunal that she had been too busy to investigate the social media posts,” he said. “Surprisingly it [British Waterways Board] was not criticised for sitting on the allegations and not dealing with them promptly.
“The practical advice, however, is not to do that. I could see another tribunal being quite critical of an employer who was aware of misconduct but only decided to investigate it further down the line.”
