Small employer fined for inadequate investigation of social media post
A paint sprayer, Mr A, has been awarded substantial compensation for unfair dismissal after a judge ruled his employer’s investigation into an alleged breach of company social media policy was demonstrably inadequate. Judge O’Dempsey of The Employment Tribunal ruled the managing director of a care restoration firm “unreasonably confused what was required of an employee by the [company’s] social media policy” after Mr A posted a Facebook status referring to an argument they had both engaged in.
In early 2020, Mr A, who worked for the company for five years, was involved in what the Tribunal heard was an “extremely heated discussion” with managing director Mr R about alleged poor work being carried out by the company. The Employment Tribunal accepted the managing director had “started shouting at the claimant and replied rather rudely when the claimant pointed this out” during the argument, also accepting the way Mr A’s competence was criticised during this meeting was “either new or worse than usual”.
That evening, the employee wrote on Facebook: “I don’t think I’m a bad person but I don’t think I have ever felt so low in my life after my boss’s comments today.” A number of the employee’s Facebook friends made comments on the post, “some of which were appropriate and some of which were inappropriate”, with the Tribunal noting some comments appeared to be homophobic and one suggesting the employee should “punch his boss in the face because it would make him feel better”.
When the managing director became aware of the Facebook posts, he called Mr A to a meeting in his office, along with the workshop manager and another witness. While Mr A was advised the meeting was to discuss his use of social media, it was only during the meeting that he became aware of its disciplinary nature. At this time, Mr A was advised (incorrectly) that the Facebook post was contrary to the company policy set out in the employee handbook. The next day, Mr A received a phone call advising of his dismissal without notice due to gross misconduct.
Findings of The Employment Tribunal
The Tribunal found the employer had made “no effort … to investigate what happened”, with the managing director being “unreasonably confused [about] what was required of an employee by the [company] social media policy …which did not require the employee to police the comments of others”. Furthermore, the company had failed to look into the Facebook settings used by Mr A and had made a number of assumptions about the size of the group, etc. Accordingly, the Tribunal found there was insufficient evidence available to support a reasonable employer reaching the conclusion their employee was engaged in a prohibited social media discussion.
Furthermore, the Tribunal made an adverse finding of Mr A “not given any proper notice of this meeting, [nor was he] given an opportunity to prepare for it, nor any advance knowledge of what was being alleged against him, in order for him to prepare any kind of defence against it”.
On this basis, Mr A was awarded a total compensation of £28,560.
Tips for employers arising from this case
Before jumping in and reacting to posts made on social media, such as Facebook, employers should first undertake thorough inquiries of the extent of any possible breach of company policy and make sure the alleged actions of their employee can be referred back to specific provisions of the policy. While employers may also be upset by responses made to posts made by employees, making an employee responsible for these posted responses is generally difficult, unless the employee had indicated some degree of concurrence, such as with a ‘like’.
Not being open and honest about the reason for calling an employee into a meeting with potential disciplinary outcomes is always going to place any action taken by an employer at grave risk of being overturned on review.
Case No: 2500934/2020 (V)
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