It’s not hard to see how an employer can justifiably dismiss an employee for using social media to criticise it. But what about statements made on social media years ago? In a somewhat surprising ruling, an employer was found to be justified in dismissing someone who had made derogatory remarks some years previously on social media.
In Creighton v Together Housing Association Ltd ET/2400978/2016, an employee had worked for the company for some 30 years. He was investigated for alleged bullying and, during that investigation, the employer was told that he had made derogatory and insulting comments about the company and colleagues on his ‘open’ Twitter account 2-3 years earlier.
Despite his claim that he thought his Twitter account was private, and in spite of his lengthy service, he was dismissed for gross misconduct – and then failed in his claim for unfair dismissal. Interestingly, his dismissal was not because of the alleged bullying (of which the employer found insufficient evidence) – but the employer decided that his Twitter comments amounted to gross misconduct.
The Employment Tribunal ruled that the employer was entitled to take the action it did. The fact that the comments had been made years earlier was not relevant and his dismissal was within the band of reasonable responses open to an employer.
What does this mean?
Twitter posts, and posts on other social media sites such as Facebook and Instagram, disappear from view quickly – but they leave a digital footprint that never disappears. Ill-advised posts may be forgotten by the account holder, but once an employer is alerted to comments, they can be found and relied upon to dismiss them.
Employers, including law firms, can help their workers understand the risks of using social media, particularly if they mention the companies and employers for who they work (and their colleagues). Such comments can bring the employer into disrepute and can justifiably be treated as gross misconduct. Employers should therefore check their policies and ensure employees understand the implications of derogatory and critical comments made on social media – even if they have already been made.