#UnfairDismissal?

Social media is now second nature and we all know how easily comments can be posted to the public and how quickly comments can become viral. This is becoming an increasing problem for FE colleges, with tech savvy students spending a majority of their time online. Issues can also arise when students connect or follow teachers. It is therefore not surprising that FE colleges are seeing an increase in issues involving the use of social media, whether this relates to student to student contact or posts being made by staff.

So where an issue arises as a result of a member of staff using social media inappropriately, what action can their employer take? Well, there have been a number of cases in which the courts and tribunals have been required to assess the nature of comments posted on applications such as Facebook, YouTube and Twitter and to assess whether the employer’s actions in dealing with such posts was reasonable. There has been a common theme throughout the decisions on these cases, which is that action should be reasonable and proportionate.

In addition, a recent case has identified that an understanding of how Twitter (and other social media applications) work can be necessary to decide whether an inappropriate tweet should justify dismissal. It appears that such understanding goes further than just the employer and employment judges are now likely to need to understand the potential impact that an offensive tweet or post could have following an appeal which found that a Judge’s failure to appreciate the audience of an employee’s tweets led to an incorrect finding of unfair dismissal.

Case summary

The case involved an employee who was dismissed for posting offensive tweets. The employee’s Twitter account was personal, however, he followed the company’s retail stores and they, in turn, were encouraged to follow him.

The former employee brought a claim for unfair dismissal. The Judge decided that he had been unfairly dismissed, and a key factor was that – in the Judge’s view – the tweets were private.

Unsurprisingly, the employer appealed this decision. It argued that as stores, and potentially customers, could access the offensive tweets, they could have seriously damaged the company’s reputation. The Employment Appeal Tribunal (EAT) agreed and – the perhaps more tech savvy EAT Judges – found that the unfair dismissal should not stand.

Where does this leave FE colleges?

Although this case related to the retail sector, it is helpful in demonstrating that teachers or staff who post inappropriate or offensive comments (in this case tweets) will not necessarily be able to hide behind the fact that their social media account is personal (particularly where say, they are connected with students, colleagues and/or parents).

However, as with most of the social media dismissal cases, the position still remains uncertain particularly when dismissing an employee. The EAT in the above case refused to provide general guidance on these issues and so the decision does not mean that offensive posts on Twitter can always justify dismissal and the fairness of such a dismissal, will depend on what was said and who could have or did see the offensive comment.

In light of the above issues, FE colleges would be sensible to ensure that they review and update their communication, IT and disciplinary policies to ensure that teaching staff are clear on the rules on using social media, that the policies cover situations whereby inappropriate or offensive comments are made on social media and the action that may be taken. FE colleges would be well advised to go a step further than this and consider putting in place a specific social media policy to deal with issues and ensuring that teaching staff are trained and aware of the rules.

Sarah Burke is a solicitor at Thomas Eggar, the law firm