The Employment Appeal Tribunal (EAT) in Edinburgh handed down its judgment last week in an interesting case involving the use of social media.
The case of Scottish Canals v David Smith was the first Scottish appellate decision dealing with social media misconduct and, in line with the earlier EAT decision in the case of Game Retail Ltd v Laws, the EAT once again declined to lay down any general guidance for employers tasked with addressing social media misconduct.
In Game Retail Limited v Laws, the Employment Appeal Tribunal held that as cases involving social media were likely to be fact-sensitive, the relevant test would continue to be that laid down in Iceland Frozen Foods i.e. whether the decision to dismiss fell within the 'band of reasonable responses open to an employer'.
In the Scottish Canals v David Smith case, Scottish Canals appealed against a determination of the employment tribunal sitting in Glasgow that Mr Smith's dismissal was unfair on the basis that the decision to dismiss fell outside the band of reasonable responses open to an employer.
Mr Smith made a number of comments on Facebook. These included offensive and derogatory statements and also bragging about drinking alcohol at a time when he was on standby duty.
The tribunal determined that the decision to dismiss fell outside the band of reasonable responses due to various mitigating factors.
The tribunal held that, even though it considered that Scottish Canals had genuinely believed that Mr Smith was under the influence of alcohol while on standby duty, which Mr Smith had denied, that trust had been 'repaired' by Mr Smith carrying out his duties 'apparently without incident' for a number of years since the comments were made.
The EAT decided that the tribunal had erred in law by substituting its own view for that of the employer, allowed the appeal and held that the dismissal was fair.
While employers may feel that they are left with attempting to reconcile conflicting employment tribunal decisions on social media misconduct, there are some general guidelines which can be taken from the employment tribunal and EAT decisions.
It is clear that a well drafted social media policy, which applies not only to conduct at work but also at home, can be crucial in defending any argument that a dismissal was unfair.
Privacy settings have also not been regarded as key given that, even if these are restricted, employees would have no control over the onward transmission of social media comments. It is advisable, however, to make explicit reference to this in any social media policy.
Effective communication of social media policies is also essential.
Finally, a conclusion that there is an impact on client relations or reputational damage should not hastily be arrived at. A proper assessment of any actual and/or potential harm should be made prior to considering the appropriate disciplinary sanction.