News & Legal Updates
Sign up to news & legal updates
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
The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.
Blackadders takes all reasonable steps to ensure that the content of this site is accurate and up to date. The site is not, however, intended as a substitute for seeking legal or other professional advice but rather as an informative guide to the services provided by Blackadders and topical legal developments. Site visitors should always seek advice tailored to their specific situation. Consequently, Blackadders accepts no responsibility for any loss or damage suffered by anyone acting or failing to act on the basis of information contained on this site. Downloading of material contained on this site is at the user’s own risk and all necessary virus checks must first be carried out by the user. Blackadders is not responsible for the material found on any web sites linked to this one and links to this site may only be made with Blackadders prior consent.
Blackadders owns the copyright in this blog and all material contained on it. The material on this site may be downloaded for personal use only and must not be altered. Otherwise, Blackadders’ written consent is required before any material on this site is reproduced, copied or transmitted in any way.
Information passed to us via this site is kept confidential and will not be disclosed to third parties except if authorised by you or required by law.
© Blackadders LLP 2011
Members of the Law Society of Scotland.
Blackadders Solicitors is a trading name of Blackadders LLP, a limited liability partnership, registered in Scotland No SO301600 whose registered office is 30 & 34 Reform Street, Dundee, DD1 1RJ. Reference to a ‘partner’ is to a member of Blackadders LLP.Back to News & Legal Updates