Unfairly dismissed for Facebook ‘banter’
As we have covered in previous articles, social media use by employees is an area that can often cause issues for employers. Usually, an employer will be justified in taking action where there is a clear social media policy and staff have been made aware of that policy.
In the case of Blue v Food Standards Agency one of Mr Blue’s former colleagues had been dismissed by the FSA, and made a comment on Facebook about assaulting Mr Blue’s manager. Mr Blue then added a comment saying ‘I wish’. The ex-colleague then made a further comment about wanting to smash a chair over the manager’s head, and Mr Blue ‘liked’ that comment.
The manager found out about the Facebook discussion and a copy was given to the FSA, who launched an investigation. Disciplinary action was taken against Mr Blue, on the basis that he had breached the FSA’s social media policy as well as the duty of trust and confidence. The FSA decided that dismissal was appropriate.
Mr Blue issued a Tribunal claim for unfair dismissal. He argued that he had believed his Facebook discussions were private and just between friends, and also relied on the fact that he had an exemplary record with the FSA. He claimed that he felt that the discussion was just ‘banter’.
The tribunal considered the FSA’s social media policy and found that it was directed at social media use at work, so would not necessarily apply to use in a private setting. They also found that there was never any suggestion that anyone involved in the conversation would follow through with the comments about the manager, and Mr Blue’s participation in the discussion had been with that understanding. They concluded that dismissal was a disproportionate penalty in the circumstances, particularly bearing in mind Mr Blue’s record, and that the dismissal was therefore unfair.
While this case does not establish any new legal principles, it is a useful reminder that having a social media policy is not the end of the matter and employers always have to look at the circumstances before considering appropriate action. It would also be a good idea to ensure that social media policies cover use of social media both within and outside the workplace (provided that it affects matters within employment) and that there is a clear explanation of what the employer considers to be unacceptable.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).