Social media misconduct and dismissals

    20 November 2018 | Rianda Markram

    Social media misconduct and dismissals

    Ryanair was in the news last month for dismissing cabin crew staff for gross misconduct, who they claim staged a photograph showing the crew sleeping on an airport floor in the crew room after the crew was grounded due to storms in Porto.  

    The airline described the photo, which was widely shared by the public across social media, as “behaviour which damaged their employer’s reputation and caused an irreparable breach of trust with these six persons”.
    It is inevitable that members of the public will share negative news concerning well-known companies on social media. However, for small businesses, reputation is just as important.  There has been caselaw which provides guidance to employers on when it may be fair and appropriate to dismiss an employee for negative comments made on social media that identifies the employer, is seen by others and causes damage to the employer’s reputation.  
    In one widely reported case, which provides useful guidance to employers, the employee, who had 17 years’ service and otherwise had a clean disciplinary record, made negative comments about her employer on her personal Facebook page when posting the words, PMSL [p*ssing myself laughing] bloody place I need to hurry up and sue them PMSL." It should be noted in terms of the employer establishing that damage to its reputation had been caused by this post, that on the employee’s profile she had listed her employer and job title. Other employees saw the comments and reported them to the employer. In concluding the dismissal was fair, the tribunal noted that the employee’s Facebook profile was linked to family and friends and there was nothing to stop those family and friends forwarding those comments open to a wider audience. Crucially in this case, the employer had a clear policy on social media. This included:
    • examples of unacceptable behaviour, such as making comments that could damage the employer’s reputation.
    • a reminder to employees not to rely on Facebook’s privacy settings, as comments made on these sites can be copied and forwarded by third parties without their consent.
    • a warning that serious breaches of the policy could lead to disciplinary action, including dismissal.
    By way of further example, in another recent case, a carehome manager had posted a video on her Facebook page of a music night she had participated organised by the carehome.  In that case, whilst the resident, who had Downs Syndrome, had no concerns about the post and gave his full permission for photographs and videos featuring him taking part in activities at the home to be shared with others and posted on social media, as the post was a serious breach of the employer’s procedures, the employer decided to dismiss. Whilst the tribunal found the dismissal was unfair on procedural grounds, the tribunal decided that dismissing the employee for a breach of its policy was fair, such that, but for the procedural failings, the dismissal would have been fair. 

    Our advice

    Given the widespread use of social media by employees, it is important for employers to have in place a policy on the use of social media that is communicated to staff. Where an employer has a clearly written social media policy in place, which is applied consistently and employees are made aware of the policy and the consequences of any violations, a dismissal is more likely to be fair.  Employers should always bear in mind that as well as establishing a fair reason for dismissing, a fair dismissal will always be subject to the employer following a fair dismissal process and considering any mitigating circumstances, or alternatives to dismissal (such as demotion or a final written warning) where appropriate.  

    This feature was written in collaboration with the lawyers at Markel Law, who regularly comment on SME related matters. You can stay up to date with the latest legal changes on the Markel Law Blog, written in plain English, so that you understand the implications that is has for you as a small business owner.

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