A recent decision by the Employment Appeals Tribunal ("EAT") found that the dismissal of an employee for putting “derogatory” comments on Facebook about a colleague was unfair. We look at the facts of the case and suggest some practical tips for employers to consider in similar instances.
In this case, the employee, Mr. Daly, had a telephone disagreement with the store manager (JO). The EAT heard conflicting evidence in relation to the content and tone of the conversation. In addition, JO denied allegations that she had been “verbally abusive” to Mr. Daly, or that she had hung up on him 14 times following the incident when Mr. Daly tried to ring her back.
Initially following the incident, Mr. Daly sent an email to his superior complaining about JO and requesting an apology for JO’s “child-like behaviour from what was supposed to be a manager”. Shortly thereafter, Mr. Daly put a “derogatory” post on Facebook about JO. Mr. Daly was later called into the office and told what he had done could constitute“bullying behaviour”. Mr. Daly offered his resignation, but was told to take time to “cool off”. Later that day Mr. Daly sent an apologetic email to JO, but she did not reply.
This incident was followed by an investigation and a disciplinary process. Whilst Mr. Daly claimed that JO had spoken to him in a condescending manner and he was not given an opportunity to address her concerns, he accepted his actions were “rude and demeaning”. It was accepted by the employer that Mr. Daly “put his hands up” and provided the employer with a fulsome apology, admitting his actions were "inappropriate and immature".
In coming to the decision to dismiss Mr. Daly, although it was accepted that Mr. Daly had a good employment record, the employer acknowledged it “did not consider any other sanction as what [Mr. Daly] had done was to put content on Facebook that was a public forum and [the employer] considered it was gross misconduct”.
Ultimately, the EAT determined that there were flaws in the employer’s policies and procedures that rendered Mr. Daly’s dismissal unfair.
In particular, it appears that the finding of "gross misconduct" was conclusive. The employer’s failure to consider other, more appropriate sanctions at any stage throughout the disciplinary procedure was a flaw that weighed heavily against the employer in the EAT’s decision. However, the EAT also determined that Mr. Daly had significantly contributed to his own dismissal as his actions were offensive and inappropriate. The EAT awarded Mr. Daly €5,000.
What is clear from the above case is, although Irish law allows employers to take an employee’s use of social media into account when disciplining an employee, this right is secondary to the employee’s right to fair procedures. The employer must always ensure the punishment fits the crime.
Finally, some practical top tips for employers:
- It is absolutely vital that employers set some ground rules in relation to the use of social media. Therefore, ensure there is an appropriate “Electronic Communications and Social Media Acceptable Usage” policy and procedure in place.
- Ensure there is a policy and procedure in place for dealing with bullying, harassment and sexual harassment to include where such issues arise in a virtualsense.
- Where an employer is considering disciplining an employee for social media use, ensure there is a sufficient link between their activity and their employment.