Can your social media posts get you into trouble at work? You may have heard that England lost the 2020 Euro final 3-2 on penalties. Heart breaking – but then the racist tweets began. Arrests have followed and a high-profile estate agents suspended an alleged racist tweeter.
- Does your organisation have a social media policy?
- Doubling down on privacy settings isn’t always the solution – screenshots can easily be taken and shared
- Workers should check their posts for discriminatory remarks and harassment
If a worker claims unfair dismissal, the Employment Tribunal must consider three aspects of the employer’s conduct as set out in the test in British Home Stores -v- Burchell
- Did the employer carry out an investigation into the matter reasonable in the circumstances of the case?
- Did the employer genuinely believe the employee was guilty of the misconduct complained of?
- Did the employer have reasonable grounds for that belief?
If the answer to each of these questions is “yes”, the Tribunal must apply the band of reasonable responses test. Did the employer act within the range of reasonable responses open to a reasonable employer?
In Game Retail Ltd v Laws the Employment Appeal Tribunal held that, “Generally speaking, workers have the right to express themselves providing it does not infringe on their employment and/or is outside the work context. That said, we recognise that those questions might themselves depend on the particular employment or work in question.”
In the case of Plant v AP1, a disgruntled worker posted, “PMSL [pissing myself laughing] bloody place I need to hurry up and sue them PMSL”. The worker’s dismissal was found to be fair as the post was in contravention of the employer’s social media policy. This set out the damage that could be caused to the company’s reputation. It reminded workers conversations between friends on Facebook were not private. It concluded that any breach would be taken seriously and might lead to disciplinary action, and serious breaches would be considered as gross misconduct and subject to summary dismissal.
In Austin v A1 the worker – a paint sprayer – had an argument with the MD. The worker shared his feelings on social media. “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.” The Employment Tribunal held that the claimant had simply expressed his personal opinion. He succeeded in his claim and was awarded a basic award of £3600 and compensatory award of £24,960.