Dismissal of employee for comments on social media

Joanna Pennick

All too often, employees are unaware that negative comments made on social media about the workplace, can form the basis of disciplinary action. This was the case in British Waterways Board (t/a Scottish Canals) v Smith in which the EAT ruled that it was not unfair to dismiss an employee for comments made on Facebook, even though the employee claimed they were untrue and merely ‘banter’.

In this case, the employee made several negative comments on Facebook about his supervisors and also published statuses about being intoxicated while he was on standby (for obvious reasons, consumption of alcohol while on-call was prohibited). The employee’s Facebook page was set to public and these comments were brought to the attention of the employee’s supervisors and his HR department. The employee claimed his comments were ‘banter’, part of a ‘running joke’ and were untrue.
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The employer did not accept this and held that the negative comments were ‘highly offensive and inflammatory’ and that colleagues and the public would have lacked trust in the employer due to the employee’s declaration that he was drunk while on standby. The employer summarily dismissed the employee for gross misconduct. The employer placed particular emphasis on the misconduct of the employee drinking alcohol while on standby and, as such, distinguished this employee’s conduct from that of two other employees (whom had made negative comments only and were sanctioned with oral and final written warnings).

The EAT held that the summary dismissal was fair, given that the entries had been made by the employee, the employer had carried out a reasonable investigation into the comments, and that, as a result of the employee’s comments, the employer had lost confidence in the employee.

Although this is an employer-friendly case, there are several lessons to be learned from it. An employer is required to conduct a reasonable investigation into comments made by an employee on social media. Further, employers have a significant role to play in educating the workforce about what is acceptable on social media and what is not. It is unlikely to be enough to simply include provisions in a policy, as a change in mindset may be required for those employees who believe that what they do in the social media space has nothing to do with their employer.

Comments published on Employment Talk do not necessarily reflect the views of Allen & Overy.

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