A paint sprayer has been awarded £28,000 for unfair dismissal after an Employment Tribunal judge ruled that his employer completed an inept investigation into his alleged breach of the company’s social media policy was. The Tribunal ruled that the managing director of A1M Retro Classics “unreasonably confused what was required of an employee by the [company’s] social media policy” after a company employee referenced an argument the pair had had in a Facebook post.
On 13 February 2020, Mr Michael Austin was involved in an “extremely heated discussion” with managing director, Mr Matthew Robinson about alleged unsatisfactory work being carried out by the company. Employment Judge O’Dempsey accepted that Mr Robinson had “started shouting at the claimant and replied rather rudely when the claimant pointed this out” during the argument.
Later that evening, Mr Austin posted a status on Facebook stating: “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.”
Following the Facebook post, a number of Mr Austin’s Facebook friends commented under it. The comments were mainly attempts to encourage and lift Mr Austin, however some of the comments were homophobic, with one commentor suggesting that Mr Austin should “punch his boss in the face because it would make him feel better”.
On 17 February 2020, after Mr Robinson became aware of the Facebook post, Mr Austin was asked by the workshop manager to attend a meeting in Mr Robinson’s office with a witness present. Mr Austin was advised that the meeting was to discuss his use of social media, the tribunal heard, and it was only after the meeting commenced that Mr Austin became aware it was a disciplinary meeting. The tribunal heard how Mr Austin was “shell shocked at the way in which he was brought into the disciplinary meeting”.
At the meeting Mr Austin was advised that as per the employee handbook, he must not discuss the company on social media, a contention the Tribunal subsequently found to be incorrect. Mr Robinson also told the Tribunal how he felt that Mr Austin had fuelled the conversation in the comments. Following the disciplinary meeting, Mr Austin was suspended immediately while a decision was being made regarding the outcome of the disciplinary meeting.
The next day Mr Austin was advised via telephone that he was dismissed and that a confirmation letter would be sent in the post. On the same day he was informed in writing that he had been dismissed without notice for gross misconduct. Mr Austin appealed the dismissal but the decision was upheld.
The Tribunal ruled that there appeared to have been “no effort by the Respondent to investigate what happened” and that Mr Robinson was “unreasonably confused [about] what was required of an employee by the social media policy”.
“The [company’s social media] policy did not require the employee to police the comments of others,” said O’Dempsey, adding: “The managing director made no effort at all to find out anything about the [Facebook] settings that the claimant had and simply assumed a number of things; for example, how big the group was.” The Judge concluded that there was no evidence that would have supported to a reasonable employer the contention that the employee was engaging in a prohibited discussion.
The Tribunal also ruled that Austin “was not given any proper notice of this meeting, [nor was he] given an opportunity to prepare for it, nor any advance knowledge of what was being alleged against him, in order for him to prepare any kind of defence against it”.
Conclusion
In a modern society where social media is so prominent, this decision provides a number of key considerations for employers facing similar issues:
- Employers should endeavour to have a Staff Handbook in place including a Social Media policy and Disciplinary Procedure;
- Not every social media post amounts to a breach of the social media policy justifying a dismissal. An employee cannot be held liable for the comments of others;
- An employer must complete an adequate investigation, have a genuine belief that the employee was guilty of the alleged misconduct and ultimately operate within the band of reasonable responses open to a reasonable employer.
- Failure to carry out an adequate investigation into alleged misconduct will render any subsequent dismissal automatically unfair.
- An Appeal process is a golden opportunity to rectify an incorrect disciplinary sanction.
