The misuse of social media in an employment context once again came under legal scrutiny in a case before the Employment Appeal Tribunal (The British Water Board t/a Scottish Canals -v- Smith (2015)).
A disgruntled employee posted comments on Facebook criticizing his managers and bragging about being “half drunk” during a period in which he was on standby for work.
The employee was summarily dismissed for gross misconduct on the basis that his comments undermined the confidence that his employer or the public could have in him. In his defence the employee stated that the comments were just banter and that he had not really been drunk. He also said that he believed that his Facebook privacy settings would have prevented his bosses from reading the comments.
The Employment Appeal Tribunal decided that it made no difference where the derogatory comments were posted, or that the employee believed his employer would not see them – the comments were enough to undermine the trust and confidence in the employee and to amount to gross misconduct.
With the misuse of social media in the workplace becoming more prevalent it is important that both employers and employees know where they stand. Cases such as this provide some valuable indications of best practice for employers and HR professionals;
- Comments made on social media may just as easily amount to misconduct as they would in the spoken word.
- Employers should always consider mitigation from an employee and tread carefully, especially where a comment might reasonably be regarded as a mere exaggeration.
- Heightened privacy settings may prevent certain people from reading certain comments, however if such comments are discovered, it is unlikely that the perceived separation of author and subject would in itself, protect an employee from disciplinary action.
- Companies should examine their internet use policies and ensure that employees are put on notice that comments which are likely to undermine or embarrass the company, clients, colleagues and/or third parties could result in disciplinary action.
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