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Our advisors have to frequently give advice regarding issues over Social Media, in particular Facebook.  Social Media can be a useful tool for many both on a personal and work front, however it can also cause employers no end of headaches.

Employees “partying” whilst on sick leave, breaching confidentiality, bad mouthing the employer and cyber bullying are just a few of the concerns our clients speak to us regarding.

A recent Employment Appeal Tribunal (EAT) case regarding Facebook, dealt with the question as it whether or not it was unfair to dismiss an employee for comments made on Facebook which he claimed were untrue.

The EAT concluded that it was a fair dismissal and therefore is useful decision for employers but perhaps a warning for Facebook users who act without consideration towards their employer.

The Tribunal claim was British Waterways Board v Smith  and Mr Smith had made derogatory comments on Facebook about his managers and work, and a claim that two years earlier he had been drinking whilst standby duty. During standby duty employees were not permitted to consume alcohol. Whilst Mr Smith denied that he had in fact been drinking, and claimed that the comments had been a joke and were not true, his employer took the decision to summarily dismiss him on the grounds of gross misconduct.  The employer justified their decision based on the fact they felt his comments had undermined the confidence in the employment relationship and could have had a serious detrimental impact on the name of the company.

However the initial employment tribunal found that the dismissal was unfair, despite concluding that the employer had carried out a reasonable investigation and had a genuine belief based on reasonable grounds that the Claimant had made the comments, the reason the tribunal reached this decision was due to their finding that the employer had failed to fully consider Mr Smith’s mitigating argument that some claims made on Facebook are exaggerated, dishonest, or simply not true.

The EAT overturned that decision and held that the dismissal was fair. The EAT said that such cases fall to be determined according to the ordinary principles of law, agreeing with Game Retail Ltd v Laws. Having found that the procedure was fair, the employment tribunal must have concluded that the Claimant’s mitigation was taken into account (which the EAT thought it had), and the employment tribunal had substituted their view for that of the employer.

The good news for employers being that it is fair and reasonable to take action against employees for inappropriate use of social media, even if employees are doing so outside of normal working hours.  It is important and strengthens any disciplinary action to ensure that you have a computer and social media policy as part of your employee handbook and contracts, please contact your HR Consultant if you wish to include such a policy or to enhance your existing documentation.