Social Media Dismissal: The EAT still decline to lay down guidance
Compulsive engagement, often ill-considered engagement with social media, is one of the most dramatic developments of digital media. That is, noting that the age in the digital world has been foreshortened from a millennium down to about 5 minutes.
We recall the age when mobile phones were just mobile phones, some of us may remember the ‘Nokia brick phones’ which had limited facilities - inbound, outbound calls and text messages. That’s it! The use of these bricks in the workplace were easy to manage and straightforward. Phones are no longer phones. They’re digital devices. In most workplaces, these digital devices are no further than a glace away. In all levels of management, from the top, to the middle and then the shop floor, this mobile device has become a necessity to survive.
The development of this digital age has been fast, however even at this present time, most employers, employees and Employment Judges have ignored the legal implications of this ever-evolving frontier of communication.
There is a shortage of law in this area. The law has failed to catch up with the pace of the digital technology. Yet, despite the very few cases that appear before an Employment Appeal Tribunal (EAT), the Judge in British Waterways Board v Smith declines to lay down any guidance.
In British Waterways Board v Smith, Mr Smith who appeared in person before the EAT Judge, had made derogatory comments, one of the 10 alleged comments were ‘on standby tonight so only going to get half pissed lol’. Other comments included ‘going to be a long day I hate my work’. Other comments are too offensive for this article! During standby periods workers were not permitted to consume alcohol. Mr Smith claimed that he had not consumed alcohol and the comments were banter. British Waterways Board summarily dismissed Mr Smith on the grounds that his 10 comments amounted to gross misconduct, and undermined the confidence of the employer.
The Employment Tribunal (ET) found that Mr Smith’s dismissal was unfair, as British Waterways Board has failed to consider Mr Smith’s mitigation, and that some of the claims made on Facebook were exaggerated or not true. The Tribunal did find that the British Waterways had conducted a fair investigation and had genuine belief based on reasonable grounds that Mr Smith made the comments. Surely that has been sufficient for a fair dismissal? Apparently no, not for the ET.
On appeal to the Employment Appeal Tribunal, the decision was overturned on the basis that the ordinary principles of law applied, relying on an earlier case. Having found that the procedure was fair, the Employment Tribunal must have concluded that mitigation was taken into account (which in the EAT judges opinion thought it had), and that ET had substituted their view for that of the employer. The dismissal of Mr Smith was fair.
The disparity between the two Tribunals necessitates the need for clear guidance on social media dismissals. The morale of the story to Employers: have a clear and well communicated policy, but that does not mean that an Employer should micromanage the private life of employee’s, interaction, religious belief. The advice to Employee’s is to think before you start typing, it is not private!
The employment law department at Wildings advises both employees and employers on all aspects of employment law. If you have any queries regarding this or any other matters, then please do not hesitate to contact us or call us on Freephone: 0330 333 8797