The use of social media and employers dismissing employees for posting inappropriate or offensive comments has gone through an evolutionary journey. In the early days Tribunals were much more willing to find an employee’s behaviour merited dismissal for making inappropriate postings on social media. Over the years though as the use of social media has become more prevalent, Tribunals have changed their approach.
With any unfair dismissal claim, an employer has to be able to show that they have acted fairly and reasonably in relying on the reason for justifying dismissal. There are five fair reasons for dismissing employees under the Employment Rights Act 1996. With inappropriate postings on social media, the employer will usually be relying on conduct as the basis for the dismissal. However as with any dismissal scenario relying on conduct, the employer has to demonstrate the response fell within the band of reasonable responses. In other words would another employer have taken the same action.
Where the misconduct involves social media, Tribunals now take the view that consideration has to be given to the damage that could have been caused to the employer’s business as a result of the posting.
In a recent case, the Employment Appeal Tribunal (EAT) has taken the view that a Judge’s decision to take into account the fact that Twitter is a much more public forum was unfair. The EAT took the view that the Judge had not properly considered whether the employee’s private use of twitter was truly private given that it was his own private Twitter account. This was despite the fact 65 of the employee’s stores followed him.
Disappointingly the EAT did not give any general guidance on dismissals for social media misuse. Instead the EAT made it clear that each case had to be considered on its merits and applying the usual range of reasonable responses test. In doing so they have to consider how private the use was and the content of the communication.
There is no doubt however that the EAT decision does suggest that because Twitter is more public in its nature than Facebook, then dismissals relating to offensive tweets are likely to be easier for employers to defend than a similar posting on Facebook.