According to Edinburgh legal firm Morton Fraser, there are lessons to be learned from the social media misconduct case which saw a former Scottish Canals employee sacked.
The company won the case for Scottish Canals against former employee David Smith after appealing to the Employment Appeal Tribunal (EAT) following his dismissal for commenting on social media that he had been drinking alcohol while on standby duty.
Although the result is a success for the legal team, it’s urging businesses to be wary when it comes to online networking.
Scottish Canals v Smith
The Employment Tribunal originally upheld that Smith’s dismissal was unfair on the basis that the decision to fire him fell outside the band of reasonable responses open to an employer due to various mitigating factors which it considered that Scottish Canals failed to have regard to.
Smith was a waterways operative responsible for the maintenance and general upkeep of canals and reservoirs. One of his duties involved being on standby duty which involved responding to emergency situations which occurred outwith Scottish Canals’ normal working hours.
During this time, Smith made a number of comments on Facebook. These included highly offensive and derogatory statements about his managers and also bragging about drinking alcohol at a time when he was tasked with responding to a potential emergency situation.
Smith believed that he had his Facebook settings set to ‘private’ and therefore his page wasn’t open to the public. He said that he would not have posted the comments if he had known they would be accessible to the public and that they were just “banter” with his friends.
The EAT held that, even though it considered Scottish Canals had genuinely believed Smith was under the influence of alcohol while on standby duty, which Smith had denied, that trust had been “repaired” by Smith carrying out his duties “apparently without incident” for a number of years since the comments were made.
The EAT decided that the decision in favour of Smith had erred in law by substituting its own view for that of Scottish Canals. It allowed Scottish Canal’s appeal and held that Smith’s dismissal was fair.
According to Morton Fraser, this is the first Scottish appellate-level decision dealing with social media misconduct and, in line with the earlier English 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.
It says that, in Game Retail Limited v Laws, the EAT 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, that is, whether the decision to dismiss fell within the “band of reasonable responses open to an employer”.
The firm claims that while employers may feel 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 says 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. But Morton Fraser says it might be advisable, however, to make explicit reference to this in any social media policy.
According to the Edinburgh team, effective communication of social media policies is also crucial. It says a conclusion that there is an impact on client relations or reputational damage should not hastily be arrived at and that a proper assessment of any actual and/or potential harm should be made prior to considering the appropriate disciplinary sanction.