Business Law: Andrew West on the perils of social media in a work context

Andrew West of Gotelee Solicitors.

Andrew West of Gotelee Solicitors. - Credit: Archant

For most people, using social media has become part of the daily routine, whether at work or at home.

But to what extent do postings on social media in your own time have any relevance from a work perspective?

Mr X worked for a British company and had raised a number of grievances against his employer.

A mediation was arranged, as part of which Mr X’s line manager disclosed a number of incriminating Facebook posts that Mr X had made, some of which were over two years old.

Mr X had referred to his supervisors as “pr****” and “w******”. The company’s social media policy prohibited “any action on the internet which might embarrass or discredit the company (including defamation of third parties)”.

Mr X had also posted two years previously that he was drinking whilst on standby, which was strictly forbidden under the company’s policies. Mr X’s manager had known about this a year previously, and had discussed it with the HR team, but it was not addressed with Mr X.

Instead of a mediation taking place, Mr X was suspended and then following a disciplinary process, he was dismissed for gross misconduct because his comments had undermined the confidence his employer or the public could have in him.

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Mr X denied that he had ever drunk on duty, and said that this was just harmless online banter. So was his dismissal unfair?

It was ultimately decided that the process that the company had followed was fair. There had been a proper investigation and it was reasonably believed that Mr X had been drinking whilst on call. The comments about supervisors in an open forum were clearly unacceptable.

Perhaps surprisingly, there was no criticism that the company had failed to act on the drinking on standby issue when it had been made aware of it a year earlier.

It also highlights that even if an employer is deliberately trawling for evidence of gross misconduct, that does not prevent it from relying on it, if something untoward is found.

So there are two morals. For businesses, having a social media policy which sets out what is unacceptable on social media is extremely important. For individuals, you might want to revisit your timelines...

: : Andrew West is a partner specialising in employment law at Gotelee Solicitors.

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