This Summer saw Scotland’s Employment Appeal Tribunal (EAT) make its first ever judgement on a social media misconduct dismissal. In British Waterways Board (t/a Scottish Canals) v David Smith  the EAT overturned the Employment Tribunal’s decision that Mr Smith, a waterways operative responsible for the maintenance and general upkeep of canals and reservoirs, had been unfairly dismissed after making offensive and derogatory comments on Facebook about his managers and making a claim (two years earlier) that he had been drinking alcohol whilst on flood alert standby duty, which was strictly forbidden.
Originally, at the Employment Tribunal, the judge found that British Waterways Board had not taken into account mitigating factors when deciding to dismiss Mr Smith, including the fact that during the disciplinary procedure he asserted that the claims in relation to alcohol consumption were not true and were simply exaggeration and banter: nor, said the Tribunal, had they taken account of the fact that Mr Smith had been working without incident for the two years since the Facebook posts in question. The Employment Tribunal therefore concluded that the dismissal was not within the band of reasonable responses open to an employer and was unfair, despite conceding that British Waterways Board had carried out a reasonable investigation into the misconduct and had a reasonable belief in Mr Smith’s guilt.
British Waterways Board appealed the judgement, the outcome being that the EAT overturned the decision of the Employment Tribunal and said that it had erred in law by substituting its own view for that of the employer and ruled that the dismissal was fair. However, following the example of the English EAT in Game Retail Ltd v Laws (in which an employee was sacked for making offensive comments on his personal twitter account about the places he had to travel for work and the fellow drivers he encountered along the way), the Scottish EAT declined to set out guidelines for employers addressing social media misconduct issues, simply saying that employers had to consider whether the decision to dismiss fell within the “band of reasonable responses open to an employer” (i.e. the normal legal test to determine whether or not a dismissal is fair).
So, in the absence of guidelines, what lessons can we learn from these cases? Well, the first is not to make offensive statements about your boss on Facebook! In addition:
- Ensure your organisation has a Social Media Policy in place – ensure that it is kept up-to-date to track the fast pace of change in social media and ensure that it is properly communicated to staff (and that you have good evidence of this). When changes are made to the Policy, it should be recirculated to staff.
- Whilst there are good Social Media Policy templates available, time taken to tailor them to your organisation’s requirements and particular issues will be well worth it. For example, if client confidentiality is a significant issue for your organisation, the impact of disclosing information about clients on social media should be explained in the Policy.
- Make sure that the Policy states that it applies to social media usage outside the workplace as well as in it, as far as it relates to work, colleagues, clients, suppliers and you as the employer. The Policy should explain the reputational risk to the company from ill-considered employee posts, even if such posts are made out of hours and via the employee’s personal accounts.
- The Policy should also explain that whilst employees may set privacy settings on their social media accounts this does not give them freedom to say whatever they like about work and the company, as such settings don’t prevent the post from being forwarded by others.
- If a post appears to cause reputational damage to you as the employer, don’t just assume that such damage has occurred. Look further into the matter - who is likely to have seen the post? Has reputational damage actually occurred? What is the loss stemming from the damage (e.g. loss of a client)? It may be that in order to justify a disciplinary sanction an employer will have to show that there have been serious consequences as a result of an employee’s post.
- Ensure that your Disciplinary Policy dovetails with your Social Media Policy – if the latter says a serious breach of it is an act of gross misconduct, the Disciplinary Procedure should say the same. The Social Media Policy should also give a list of potential sanctions that may be imposed if it is breached – this should match what it says in the Disciplinary Procedure.
- Finally, social media is a fantastic business tool, enabling businesses to reach a very wide audience at very little, if any, cost. In the right circumstances, employers should encourage the use of social media by employees for work purposes and ensure that everyone gets the most out of it, and risk is minimised, by setting out guidelines as to appropriate use.
If you’d like advice on the use of Social Media in the workplace or require a template policy, do get in touch.