When is it fair for an employer to dismiss on grounds of gross misconduct for posting comments on social media sites such as Facebook? Looking at recent cases, a recurring problem for employers and employment tribunals is deciding where the boundary lies between gross misconduct and misconduct. The difference between the two is crucial to whether a dismissal will stand up to the scrutiny of an unfair dismissal claim. Given the nature of transgressions made by employees on social media sites, which are often blatant and offensive and easily attributable to the employee, establishing misconduct should be straight forward. These are cases where a warning including a final written warning would be the appropriate sanction under the employer’s disciplinary policy.
The question is what turns misconduct into gross misconduct in this context?
Strictly of course, it is not for employment tribunals to impose their own view in the matter. Tribunals remind themselves before arriving at a decision (at least they should do) that the function of the tribunal is to determine whether, on the particular facts of the case, the employer’s decision to dismiss fell within the band of response a reasonable employer would have adopted. So, what factors tend to keep employers within that reasonable band?
In the recent case of Trasler v B&Q, an employee was summarily dismissed after he posted on Facebook that his "place of work is beyond a f****** joke" and that he would soon be "doing some busting", which was seen by a colleague and reported to his employer. A tribunal found that:
- The claimant was aware that his comments could be read by 40-50 people who would be aware that they related to the company
- He had breached the company’s social media policy, which prohibited the making of comments which were derogatory, defamatory, rude, threatening or insulting to the company or colleagues. The claimant accepted that he was guilty of misconduct although on what basis it is not clear
- He had showed no remorse for his actions, including on appeal, but gave the explanation that he had had a bad day at work and was relieving his stress by letting off steam on Facebook
- There was no evidence that anyone had felt threatened by the claimant’s comments, including on the part of the person who reported them, although the claimant accepted that they could be perceived is being threatening
- The company had carried out a reasonable investigation and procedure. The dismissing manager knew that establishing that the misconduct fell within the examples of gross misconduct did not mean that dismissal was the inevitable consequence and the seriousness of the particular matter had to be taken into account
- The claimant had a clean disciplinary record and four years’ service.
Importantly, the tribunal concluded that the claimant’s comments had not posed any threat to the business and it did not accept that company’s evidence that the claimant could damage company property, based on the comments made. Hence, the decision to dismiss was outside the band of reasonable response.
In sum, the tribunal was not content that the company had shown sufficient reason for dismissal and that there was sufficient evidence to show that the claimant’s comments had undermined trust and confidence such that the claimant could no longer be employed. However, on the issue of remedy, the tribunal found that the claimant had contributed to his dismissal not only by making the comments but also for failing to show remorse or to understand the consequence of his actions. Hence, his compensatory and basic award were reduced by 50 per cent.
The finding of unfair dismissal is perhaps surprising for employers. Another tribunal could have decided the matter differently. They key lesson for employers, when taking the decision to dismiss, is not to focus merely on what is said by employees on social media sites but what the effect of what is said on the business, including its employees. What employees say on these sites in relation to their employment can clearly be extremely rude, vulgar, indiscrete or otherwise wholly inappropriate. However, in the light of decisions such as Trasler v B&Q, it seems that what tribunals are likely to be looking for is hard evidence of how particular individuals are likely to be offended, threatened or undermined by the comments or how the business is likely to be adversely affected. In the Trasler case, the employee was able to explain away his comments on the basis that he needed to let off steam, perhaps in the same way that an employee would have done to a colleague verbally before the days of social media. Similarly in Walters v Asda Stores Ltd (2008), the employee made the comment on Facebook that it would make her happy to hit customers on the back of the head with a pic axe,. The tribunal found the dismissal to be unfair.
A case often referred to is Crisp v Apple Retail (UK) Ltd (2011), where derogatory comments concerning the employer were found to breach the employer’s stated core values. However, in the absence of clear guidance to employees as to what such values are, any dismissal could well be unfair. So, the harder the line an employer wants to take on use of social media, the greater the need to make clear to employees what constitutes gross misconduct. Hence the need for a clear social media policy, please see Buddy`s social media policy. However, reliance on the policy wording itself is not enough and employers must also apply their minds very clearly in each case, when dismissing, why that particular employee has to be dismissed in the particular circumstances. Plus, they need to explain those reasons fully in the dismissal letter.