A paint sprayer has been awarded £28,000 for unfair dismissal after a judge ruled his employer’s investigation into whether he had breached social media policy was inadequate.
The tribunal ruled that the managing director of A1M Retro Classics “unreasonably confused what was required of an employee by the [company’s] social media policy” after a worker for the firm posted a Facebook status referring to an argument the pair had had.
On 13 February 2020, Michael Austin, who worked for the company for five years before his dismissal, was involved in what the tribunal heard was an “extremely heated discussion” with managing director Matthew Robinson about alleged poor work being carried out by the company.
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Employment judge O’Dempsey accepted that Robinson had “started shouting at the claimant and replied rather rudely when the claimant pointed this out” during the argument. The way in which he criticised Austin’s competence during this meeting was also “either new or worse than usual”.
That evening, Austin wrote on Facebook: “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 Austin’s Facebook friends made comments on the post, aimed primarily at trying to reassure Austin, “some of which were appropriate and some of which were inappropriate”, the tribunal heard. Some of the comments were homophobic and one commentor suggested Austin should “punch his boss in the face because it would make him feel better”.
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Robinson admitted to the tribunal that he did not use Facebook and did not fully understand it. When he became aware of the post, including some specific comments made by other users, he asked a manager to print them out.
On 17 February, Austin was asked by the workshop manager to attend a meeting in Robinson’s office with a witness present. Austin was told the meeting was to discuss his use of social media, the tribunal heard, and it was only once the meeting was underway that Austin became aware it was a disciplinary. The tribunal heard Austin was “shell shocked at the way in which he was brought into the disciplinary meeting”.
At the meeting Austin was told that it was in the employee handbook that he must not discuss the company on social media – although the tribunal found this was not the case. Robinson also told the tribunal he felt Austin had fuelled and incited the conversation in the comments. Following the meeting Austin was suspended while a decision was being made regarding the outcome of the disciplinary meeting.
The next day Austin was telephoned and told he was dismissed and that a letter would follow in the post. On the same day he was informed in writing that he had been dismissed on the grounds of gross misconduct, and was therefore dismissed without notice. Austin appealed but the dismissal was upheld.
The tribunal ruled that there appeared to have been “no effort by the respondent to investigate what happened” and that Robinson was “unreasonably confused [about] what was required of an employee by the social media policy”.
“The [company’s social media] policy did not require the employee to police the comments of others,” said O’Dempsey, adding: “The managing director made no effort at all to find out anything about the [Facebook] settings that the claimant had and simply assumed a number of things; for example, how big the group was.” The judge concluded that there was no evidence that would have supported to a reasonable employer the contention that the employee was engaging in a prohibited discussion.
The tribunal also ruled that Austin “was not given any proper notice of this meeting, [nor was he] given an opportunity to prepare for it, nor any advance knowledge of what was being alleged against him, in order for him to prepare any kind of defence against it”.
The judge dismissed claims by Robinson that the claimant was bullying him, and the claim that Austin had breached equality legislation by starting the string of comments – some of which were homophobic in nature – was also dismissed.
Austin was awarded a total compensation of £28,560.
Peter Woodhouse, head of business sector at law firm Stone King, said that in this instance “the employer got the process wrong in some fairly basic ways”.
“Sometimes employers can get upset when employees post damaging social media, but should remember that not all social media posts that they happen not to like will justify a dismissal,” he said. “The case is a handy reminder of some of the processes that an employer must get right in a social media disciplinary context.
“Lesson one is if you are going to rely on a breach of a policy, be sure that the employee is in breach of it. Lesson two is if you are going to dismiss for reputational reasons, be sure to be able to show what they are, and lesson three: an appeal is a golden opportunity for an employer to rectify any previous deficiencies in the process.”