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Settlement Agreements and Facebook

Alleged misconduct involving an employee’s use of social media can pose difficulties for employers as it can be difficult to categorise the misconduct: for example, whether it consists of damaging the employer’s reputation, or breaching the employee’s duty of confidentiality. The employee may seek to argue that the conduct has taken place outside work, that it has no bearing on the employment relationship, and that the employer is infringing privacy rights.

In previous cases the Employment Tribunal (ET) held that an employee was fairly dismissed for making derogatory comments about customers on Facebook while at work, where the employer had a clearly drafted policy warning that employees might be disciplined for making derogatory comments in blogs about customers, staff or the organisation.

However, in another case it was held that even where employers have a policy regarding employee comments on social media sites, dismissal is likely to be unfair unless the employer can show actual damage, or the serious risk of potential harm, to the business.

A recent case has been presented to the Employment Tribunal; David Smith (employee) a canal worker from Scotland, has brought a claim for unfair dismissal against his employer, Scottish Canals, after he was dismissed for posting comments on his Facebook page.

The employee commented on Facebook that he was “on standby, so only going to get half p***ed lol” and he was “drinking vodka and apple juice” and “why are gaffers such p****s? is there a book teaching them to be w*****s? Need a new job”.
The employee thought that his Facebook page was private and he believed the comments, which he claimed were “banter”, were only brought up to prevent him raising a grievance against his employer.
The comments were made on Facebook two years before they came to the employer’s attention and it was at this time the employee was intending to raise a grievance against his supervisors.
It could be construed that the employer was looking for a reason to dismiss the employee and the Facebook comments gave them the means to do this.
However, there is clear evidence that the employee made derogatory comments about his employer and the employee was drinking alcohol while on duty. Both could be considered to be gross misconduct.

Employees should make sure they are aware of their employers’ social media policy. Employees also need to be mindful that when any social media disciplinary action is taken, if they are found to have committed gross misconduct they can be dismissed without notice. In these circumstances, employers will rarely use a settlement agreement to bring the employment relationship to an end.

If you have any concerns relating to the above, or would like further information relating to avoiding social media disciplinary action, please contact a member of the team.

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