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Employee dismissed for Facebook posts

In British Waterways Board v Smith, Smith was fairly (in the Employment Appeal Tribunal’s (EAT) opinion) dismissed for making derogatory comments on Facebook about his managers and work. This case raises the wider question of social media in the workplace and what employers should do to prevent social media issues arising from employees’ actions.

Smith not only made derogatory comments on Facebook about his managers and work, it also appeared from a closer analysis of his Facebook page that two years earlier he had been drinking whilst on standby – something employees were expressly not permitted to do. For his part Smith claimed his comments about his managers were only banter and that he had not been drinking, he had just said so on Facebook for appearances sake.

British Waterways dismissed him for gross misconduct and stated that his comments had removed the employer’s or indeed the public’s confidence in him. Although an earlier tribunal found that the employer didn’t properly consider his defence arguments, the EAT held that the dismissal was fair, adding that the employer was entitled to regard the content as being valid in the case of the drinking allegation and finding that it was entitled to find his more recent comments as derogatory and regarding them as a serious disciplinary issue.

The lessons for employees in this case are pretty clear – don’t say bad things about colleagues or managers on social media, and if you do find yourself to have broken a work rule, don’t write about it on Facebook.

But with the very real risk of reputational damage arising from employee posts and an increasing volume of social media cases going through the courts, what should employers do to ensure that their employees are aware of the dos and don’ts of social media?

  1. All employment contracts should now have social media clauses.
  2. Write a social media policy making clear what constitutes unacceptable posting (or contact myHRdept for a suitable policy – £35 + vat.)
  3. Make sure all employees are provided with a copy and preferably that they sign and acknowledgement to say they have read and understood it.
  4. When becoming aware of a potential breach, act quickly and investigate thoroughly and consider:
    a. Asking the employee to remove the offending content
    b. Whether the breach is minor and can be rectified with education
    c. How much damage has really been done – based on the content and the number of opens

As with all disciplinary breaches a knee jerk reaction is not a good idea – a thorough and objective investigation is essential to demonstrating a fair end decision – something British Waterways achieved in the case above.

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