Employers & employees should be wary of the power of social media

David Smith, a canal worker from Scotland, has brought a claim for unfair dismissal in the Employment Tribunal after he was dismissed for posting comments on his Facebook page.

He commented on Facebook that he was “on standby, so only going to get half p***ed lol”. He also commented that he was “drinking vodka and apple juice”. In another post, David Smith commented: “Why are gaffers such p****s? Is there a book teaching them to be total w*****s? Need a new job”. The defendant explained to the Employment Tribunal that his comments were “banter”, and a “joke”. He also claimed that he thought his Facebook page was private.

In his defence, David Smith has claimed that he was being bullied by his supervisors, and was about to raise a grievance against them. It was at this point when the comments, which had been made on Facebook two years earlier, were sent to Human Resources. He is of the opinion that they were raised to prevent him making his grievance, which also related to health and safety issues. Mr Smith told the tribunal he believed his Facebook page was set to private and would never have made the comments if he knew they would be in the public domain.

The company, Scottish Canals, dismissed Mr Smith on the grounds that he had been drinking alcohol while he was on standby, and potentially putting people at risk, as well as making highly offensive comments, and bringing the company into disrepute.

Anthony Fox, employment lawyer with Michael Lewin Solicitors, explained: “It seems suspicious that the comments had been made on Facebook two years before they came to Mr Smith’s employer’s attention, and it was just at the time when Mr Smith was intending to raise a grievance against his supervisors. The Tribunal may be of the opinion that the company was looking for a reason to dismiss Mr Smith, and this is how they chose to do it. However, based on the comments that Mr Smith placed on Facebook, it is likely that the Tribunal would find that Mr Smith’s dismissal was a fair one. He made derogatory comments about his employer, and provided evidence that he was drinking alcohol while on duty. These could both be considered to be gross misconduct.”

He continued: “Employers should make sure that they have a very stringent and clear social media policy, and should also make sure that all employees are aware of the policy. In addition, it may be worth providing training on the use of social media in the workplace to employees so that there can be no confusion. Employees should consider this: Facebook is a public forum, whether or not you believe that your page is private. Posting to Facebook is equivalent to putting a comment on the staffroom notice board. If you would not make a comment on the staffroom notice board, then you should not make such a comment on Facebook. You would risk being in breach of your employer’s social media policy, and could be dismissed.”

Anthony Fox added: “If an employee claims that a certain comment is “banter” or a “joke”, this does not mean that it could not potentially offend somebody, or even amount to discrimination. It is better to be safe than sorry, and if in doubt, do not say (or post) it.”