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More than 6 months on from the Game decision, the Scottish EAT has now heard its first case concerning a social media misconduct dismissal.
British Waterways Board t/a Scottish Canals v Smith was an appeal against a finding of unfair dismissal. Mr Smith was dismissed when his employer, Scottish Canals, discovered various Facebook posts which he had made. Among the offending posts were offensive views about his colleagues and comments that he had been drinking whilst on standby some two years prior. The comments included: “w@nker supervisor”…“why are gaffers such pr1cks, is there some kind of book teaching them to be total w@nkers”… “on standby tonight so only going to get half pissed.” Mr Smith did not specifically identify the employer in the posts other than a reference to the initials “bw”. He admitted making the comments but explained them as banter. He also made reference to his Facebook having been hacked whereby the settings were changed from private to public.
The employment tribunal found that the respondents had carried out a reasonable investigation and had a reasonable belief as to the claimant’s guilt of misconduct. However, they found the decision to dismiss was outside the band of reasonable responses because the employer had failed to consider the claimant’s mitigation.
The EAT overturned this decision and substituted a finding of fair dismissal – the tribunal had substituted their own view for that of the employer (which they are not supposed to do). Again, the EAT declined to issue any social media specific guidance. Instead, they agreed with the approach in Game whereby the tribunal must apply the ordinary principles of law in all unfair dismissal cases. They saw no reason for special rules in social media cases.
In the absence of social media specific guidelines, employers should ensure that they fully investigate any issues of social media misconduct in accordance with their policies and procedures. A robust social media policy should assist in this task and will also act as a useful tool to ensure that employees are well aware of the standards expected regarding the use of social media. The case also serves as a timely reminder for employees that arguments about privacy settings and banter will not save them from getting their books.
Senior Solicitor – Employment Law
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