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Dismissing employee over abusive Facebook post was ‘not unfair’

A company that sacked an employee who made abusive comments on Facebook and claimed he’d been drinking on duty had not acted unfairly.

That was the decision of the Employment Appeal Tribunal in the case of ScottishCanals and one of its employees.

The issue arose after the employee posted comments that he had been drinking while on standby for flood alerts.  He also posted abusive remarks about his supervisors.  When questioned by the company, he said the comments were jokes and part of everyday banter.

However, Scottish Canals decided that he had been drinking and dismissed him.

The Employment Tribunal (ET) concluded that the dismissal was unfair and the company had not considered “the nature of Facebook” where people often made exaggerated claims to amuse friends.

That decision has now been overturned by the Employment Appeal Tribunal (EAT).  It said the first tribunal had “erred in law and its decision cannot stand”.  It had made the mistake of forming its own view of how the matter should have been treated instead of simply considering whether the employer had behaved reasonably.

The EAT said the company’s investigation had been reasonable and fair, and as a result, the company had lost faith in the employee and decided to dismiss him.  In conclusion, the EAT said: "The only decision that an ET properly directing itself could make was that dismissal was not unfair."

The case highlights the benefits of having clear employment policies in place, including a social media policy, to protect companies against various discrimination and unfair dismissal claims.

Please contact us if you would like more information about the issues raised in this article or any aspect of employment law.