Who’d have predicted that 18 years after the Employment Rights Act 1996 came into force, Tribunals would be hearing unfair dismissal cases about employees clicking ‘Like’ on this thing called ‘Facebook’ used by 1.28 billion people based on another thing called the ‘World Wide Web’.
That’s exactly the case that the Tribunal had to hear in a claim brought by Alan Blue against the Food Standards Agency (FSA). On Facebook, a former colleague complained that he had been sacked. Someone else commented that the manager had been hit on the head and Mr Blue wrote “aye right i wish”. He claims he meant to write “u wish”, the ‘u’ being next to ‘i’ on the keyboard. It was a simple typo. However someone later commented that the manager should have been hit over the head with a chair. Mr Blue ‘Liked’ this comment. Hopefully you understand what we’re talking about…
Mr Blue was dismissed as the FSA said the posts amounted to a breach of trust and were not professional. Mr Blue said it was just banter. The Tribunal concluded the dismissal was unfair with the Judge stating: “There was no objective reason to believe that his performance would in the future be different simply because of his foolish participation in what he had mistakenly believed to be a private online conversation that had become more public“. Mr Blue was awarded nearly £33,000 in compensation.
So, is this a surprising decision? Yes in some respects. In an online forum, accessible by millions of people, Mr Blue made a derogatory remark towards his employer (or so the employer genuinely believed) and then in ‘Liking’ someone else’s threatening comment, isn’t he agreeing with them? How can a decision to dismiss in these circumstances be outside the band of reasonable responses?
On the flip side, if Mr Blue had been in the pub having this conversation with these people, would that too have been gross misconduct? Is the distinguishing feature the fact such comments can be accessed by so many people? Don’t employers have the right to protect their reputation? Or are employers taking on the role of Big Brother, monitoring the actions of employees too closely when not in work?
There have been many other instances of employees being dismissed for comments made on social media sites. Who can forget the news story that 13 cabin crew were sacked by Virgin Atlantic when on Facebook, they were critical of the airline’s safety standards and referred to the passengers that used the airline as “chavs“. Not to mention the employee who was sacked for referring to his “sandal wearing” and “evil boss” at “B*stardstones!”
However, there is a serious point to this. There is clearly a risk that in some scenarios a Tribunal will conclude that an employer has overreacted if an employee is dismissed for comments made online. Therefore, avoiding knee-jerk reactions is recommended. In fact, ACAS have published guidance relating to social media including Do’s and Don’t when dealing with social media and deciding what is acceptable. The starting point has to be that all employers should have a good policy on social media. Ensure all employees know exactly what is and is not acceptable when using social media both during and out of working hours. Employees should also know when an employer will deem that the employee is representing the company. It is also helpful to give examples of what will be treated as potential disciplinary offences.
We do not know if the FSA had such rules in place. However, without doubt, if as an employer you find yourself in Tribunal and you can show you’ve followed the ACAS guidance, it would be a good starting point to defend any such claim.
Of course, sometimes no matter what rules are in place, employees can do stupid things. Our favourite reported story is where an employee posted on Facebook about how much she hated her boss. However, she forgot she had ‘friended’ her boss. The boss responded by commenting on the post, telling her not to bother coming into work the next day! The moral of the story, make sure Facebook doesn’t become your Farcebook.