Publish and Be Damned? Unfair Dismissal and Social Media

Social media has been with us for more than a decade now. During this time a large body of employment case law has developed on the fairness of dismissing employees who have pressed the ‘send’ button and disclosed their workplace woes to the internet via the likes of Facebook and Instagram. It is fair to say that most decisions to date have been unsympathetic towards employees, reflecting the wisdom of the 1^st Duke of Wellington in his 1824 dictum ‘Publish and Be Damned’…

A recent decision bucking this trend was the case of M Austin v A1M Retro Classics Ltd: 2500934/2020 which was heard at Newcastle Tribunal on 10^th and 23^rd of November 2020. The case was brought by Mr Austin, a paint sprayer who had the proverbial ‘bad day at the office’ on 13^th February 2020, when he was given a dressing down by his boss Matthew Robinson over his alleged poor workmanship.

When Mr Austin returned home he let off steam on his Facebook account confiding that he had never ‘felt so low in all my life after my bosses comments today’. Unfortunately for him, some of his Facebook friends were a little over-enthusiastic in their responses with one stating that Austin should “punch his boss in the face because it would make him feel better”. Other posters made homophobic comments about Mr Robinson.

Mr Austin was hauled into a disciplinary on 17^th February 2020 and dismissed by telephone the following day. The Company did not accept his explanations that his post had not referenced the Company, had been to a restricted group or that he could not be held responsible for postings made by other people.

Mr Austin claimed unfair dismissal and his claim was upheld by Newcastle Employment Tribunal on 13^th December 2020 with an award of £28,560. The tribunal found that the dismissal was unfair in some basic ways which will be familiar to employment lawyers. The Company had failed to carry out an investigation or given Mr Austin any advance notice of the disciplinary hearing.

The judgement also contains some points of wider application in relation to social media. The tribunal found that the Company had not specifically demonstrated how Mr Austin’s posting had breached the Company’s social media policy which did not state that employees could be held responsible for the offensive postings of others. The Company had failed to establish that reputational damage had taken place and did not consider basic facts such as the privacy settings on Mr Austin’s Facebook account.

The case is an object lesson in not rushing to judgment when dismissing employees. Companies should be particularly wary of asserting that they have suffered ‘reputational damage’ when there is no evidence of this and should ensure that if they are going to rely on a policy that they can specifically evidence how it has been breached.

This blog is by Mark Alaszewski, Solicitor at Didlaw