By Muchie Shamuyarira HR Director and Employment Law Consultant in the UK
Social Media: Is it fair to be dismissed for social media activity?
Employee in the UK awarded £32,160. Employment Dismissal for posting personal opinion of a boss was unfair.
A lot of people lose their jobs because of what they post on social media. However, in the recent case Austin v A1M Retro Classics Ltd, a UK employment tribunal held that the employee had not committed an act of gross misconduct when he posted comments about his boss on Facebook and that his dismissal was both unfair and wrongful.
Mr Austin worked as a paint sprayer for A1M Retro Classics Ltd.
In February 2020, Mr Austin spoke with the Managing Director of A1M. The conversation became extremely heated when Mr Austin said that the company needed to sort a lot of things out and he gave some examples. The director told Mr Austin that he had no respect and he questioned his competence. He started shouting at Mr Austin and left the meeting abruptly after Mr Austin told him that the company had not moved forward in five years.
That evening, Mr Austin posted on Facebook that “I don’t think I’m a bad person but I don’t think I have ever felt so low in my life after my boss’s comments today”. A number of people replied with reassuring comments although some were inappropriate as one posting urged Mr Austin to “punch his boss in the face”.
The Managing Director became aware of the Facebook comments.
The following Monday, Mr Austin was called to attend a meeting in the director’s office to discuss his use of social media. Mr Austin was “shell shocked” when he realised, after the discussion had started, that it was a disciplinary meeting. The Director told Mr Austin that the handbook stated that he must not discuss the company on social media and that his posted comments could damage the company’s reputation. The Director said that this amounted to gross misconduct and that he was suspending Mr Austin until the disciplinary decision was reached.
The next day, the company informed Mr Austin that he had been summarily dismissed for gross misconduct.
After an unsuccessful appeal, Mr Austin brought a claim of unfair dismissal in the employment tribunal.
The tribunal found that A1M had carried out a minimal and flawed investigation. The tribunal considered that the managing editor had made assumptions about Mr Austin’s postings because he did not use Facebook himself and did not fully understand it.
In the tribunal’s view, a reasonable employer would have checked the settings and the size of Mr Austin’s social media group and the extent, if any, that his postings were visible to the public. The tribunal would also have expected a reasonable employer, if it had found that the comments were posted on a personal account, to consider if they were made “with inappropriate privacy settings” under the company’s own social media policy.
After examining A1M’s social media policy, the tribunal found that the company was “unreasonably confused” as the policy does not prevent employees from talking about their work on social media. The tribunal said that Mr Austin was not doing anything more than expressing a personal opinion in his post. In respect of the inappropriate postings, the tribunal found no evidence that Mr Austin had replied to them and he was not required, under the social media policy, to “police the comments of others”.
The tribunal also found no evidence that A1M asked Mr Austin to take down the comments before it made its disciplinary decision. The tribunal considered that a reasonable employer would have made such a request and would have made it clear that this was a direct management instruction.
The tribunal noted that, at the time the decision to dismiss was made, the comments had been on Facebook for a very short period of time and it considered it was highly unlikely that they would have caused any damage to A1M’s reputation.
Turning to the dismissal procedure, the tribunal held that the process was flawed because Mr Austin was not given “any proper notice” of the disciplinary meeting or “any advance knowledge of what was being alleged against him, in order for him to prepare any kind of defence against it”. The company had also failed to inform Mr Austin of his right to be accompanied at a disciplinary meeting.
Having made these findings, the tribunal held that the decision to dismiss was not one that a reasonable employer would have reached and was unfair. The tribunal also found the dismissal wrongful because Mr Austin had not committed an act of gross misconduct. Consequently, he was entitled to receive his notice pay.
On the issue of remedy, the tribunal awarded a basic award of £3,600, and a compensatory award of £28,560, which included a 20% uplift due to the procedural flaws and A1M’s failure to observe the UK Acas code of practice on disciplinary and grievance procedures. Please note this decision is subject to appeal.
The Case transcript can be accessed via:-
https://assets.publishing.service.gov.uk/media/60006b3be90e0763a7b4ab9e/M_Austin_v_A1M_Retro_Classi cs_Limited_2500934-20_Judgment.pdf
Despite outcome of this case, people are strongly advised to consider the nature of their social media posts before they post them. Ramifications of inappropriate comments about their organisations/management in the social media may potentially be serious regarding their continued employment and also their professional registration standards e.g. in the UK; Nursing & Midwifery Council, Social Work England, General Medical Council etc.
If you have further queries or any employment related query you can contact us on :- email: muchie@employment-rights.com or mobile: 077 2385 4713 or 073 6817 5771
Employment Rights Services is regulated by the UK Financial Conduct Authority, its authorisation number is:
829963
Website: www.employment-rights.com
Disclaimer: This article is written in a personal capacity. It is not intended as a substitute for professional advice, judgement or to provide legal or other advice with respect to particular circumstances.
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