Social Media Misconduct – Relying on Stale Information
Author: Keith Potter
It is frequently said that an employer ought to act promptly when made aware of information which may involve a breach of a disciplinary rule, particularly in cases where the possible penalty is dismissal.
A recent EAT case showed that delay will not always be fatal to the employer’s position, depending on the nature of the misconduct and its duration. The case involved an employee who had worked for the employer for 8 years. The employer had a social media policy which prohibited the publication of information which might embarrass or discredit the employer. The employee had raised several grievances during his employment. In the course of dealing with the most recent one the employee’s line manager drew the attention of the employer’s HR people to derogatory comments which the employee had published on his Facebook page. The line manager had raised his concerns about the employee’s Facebook comments some 12 months beforehand but no action had been taken. The HR people decided to investigate the comments which had been posted over a period of some 2 years. Some were expressed in offensive terms and all were derogatory of the employer and of managers within it. Some referred to the drinking of alcohol while the employee was on standby duty. The employee was suspended and, following an investigation and a hearing, he was summarily dismissed.
An Employment Tribunal found that the employee had been unfairly dismissed, largely because the employer had been aware for some time of the derogatory comments. This decision was overturned on appeal by the EAT. The EAT considered that the Employment Tribunal had wrongly substituted its own views of the seriousness of the misconduct for those of the employer. It did not criticise the employer for relying on what was in part very stale evidence. The decision was within the range of reasonable responses for the employer.
Aspects of the case are similar to those of one involving Leeds United Football Club in 2015. In that case the employer embarked on an internal investigation, fishing for material which it might be able to use to avoid paying an employee the 12 months’ notice pay to which he was entitled. It found evidence that he had used his work email account to send an email with pornographic images attached to it to a junior female employee and to two friends outside the club. Even though this had happened 5 years beforehand, it had not previously been known to the employer. The Court accepted that the employer was entitled to rely on this to dismiss the employee with immediate effect.
The cases suggest that Courts may allow considerable latitude to an employer who dismisses for the dissemination of offensive, derogatory or pornographic material in a public forum, even though the conduct in question has remained undiscovered for a long period.