Dismissal for social media comments – the importance of investigation
24 February 2021
As employment lawyers we are often asked to advise on issues involving comments made by employees on social media. Most employers have social media policies, so often it will become a potential disciplinary issue. However, even where you have printed evidence of the comment having been made, it is still important to ensure the allegation is investigated properly, as was demonstrated in the recent case of Austin v A1M Retro Classics Limited.
On 13 February 2020, Mr Austin and the Managing Director of the employer, Mr Robinson, became involved in an “extremely heated” discussion about things that in Mr Austin’s view needed sorting out within the company.
That evening Mr Austin posted 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.”
His post was commented upon by some of his Facebook friends; a couple of the comments were homophobic and one said that Mr Austin should punch his boss in the face because it would make him feel better.
Mr Robinson became aware of the post and decided to investigate the matter as a potential breach of the company’s social media policy, the relevant parts of which stated:
“You must not make any comments or engage in discussions which could adversely affect us or our reputation. You must not breach discrimination legislation or harass or bully another employee. Any information posted on the Internet may result in disciplinary action up to and including dismissal if it breaches this policy. This includes posts on a personal account with inappropriate privacy settings. You may also be required to remove content created or shared by you if we consider such posts to be a breach of this policy.”
On 17 February 2020, Mr Austin was asked to attend a meeting in Mr Robinson’s office. It was only during the meeting itself that it transpired that it was a disciplinary meeting. Mr Austin was told that the meeting was to discuss his use of social media due to concerns about him posting comments which could damage the company’s reputation.
During the meeting Mr Austin denied that he had put anything on social media which could damage the company’s reputation. Not long after the meeting he was informed that he had been dismissed without notice on the grounds of gross misconduct.
Mr Austin appealed his dismissal and argued that he was not responsible for the comments made further to his post. The person who heard the appeal did not investigate either the size of the group, nor the settings relating to the group, but found that Mr Austin was responsible for permitting the discussion to take place.
The dismissal was upheld, and Mr Austin submitted a claim for unfair dismissal.
The Employment Tribunal considered whether the employer had acted reasonably in dismissing Mr Austin. In coming to that decision, the Tribunal considered three aspects of the employer’s conduct set out in the test in the landmark case of BHS v Burchell to determine whether a dismissal for misconduct is fair:
- Did the employer carry out an investigation into the matter that was reasonable in the circumstances of the case?
- Did the employer genuinely believe that the employee was guilty of the misconduct complained of?
- Was the decision to dismiss within the ‘band of reasonable responses’ open to a reasonable employer?
The investigation was found to be unreasonable. Mr Robinson did not attempt to find out whether the post had been made available to the public generally, or to what extent it had been made available. He made no effort to find out anything about the Facebook settings which Mr Austin had, and made a number of assumptions, including how big the group was that had seen the post. It was unclear whether there was any impact on the reputation of the employer outside of Mr Austin’s Facebook friends. The Employment Tribunal stated that a reasonable employer would have asked Mr Austin to take down the comments before any decision was made.
The Employment Tribunal found that the employer genuinely believed that Mr Austin had committed an act of misconduct in allowing the discussion on Facebook to take place. However, it was not accepted that the employer believed that this was a breach of its social media policy, which contained nothing about preventing people from commenting on posts.
It was not accepted that the employer had reasonable grounds for their belief that Mr Austin was guilty of misconduct. Mr Austin had simply expressed his personal opinion.
Mr Austin was awarded a total of £28,560. This included a 20% uplift on the compensatory award due to the employer’s failure to follow the ACAS Code of Practice on Disciplinary Procedures. Mr Austin had not been given an opportunity to prepare for the meeting, nor was he given any advance knowledge of what was being alleged against him in order for him to prepare any kind of defence.
As this case was Employment Tribunal level only, it does not bind other Employment Tribunals. However, it highlights the danger to employers of not properly investigating allegations of misconduct. These failures can prove costly and if you are in any doubt as to whether you are making the correct decisions, you should seek legal advice. Our article in which we provide an example of a recent matter in which we assisted an employer client with an investigation, demonstrates the benefits of a thorough investigation.
If you are an employer dealing with a misconduct issue that you require assistance in investigating, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].