Legal
Two recent decisions of the Employment Appeals Tribunal (EAT) demonstrate the increasingly common problems that social media usage is creating in the workplace for both employers and employees.
Incriminating Snapchat video
In the first of these decisions, the EAT rejected an unfair dismissal claim brought by an employee who sent a Snapchat video of himself taking drugs in work uniform (in what appeared to be a workplace bathroom) to both friends and colleagues.
After the video came to light, a meeting was arranged between the employer and employee. The employee was not informed of the purpose of this meeting in advance, nor was he told that he had the option to be accompanied by a colleague. During the course of the meeting, he was presented with two choices: go down the route of an investigation and disciplinary process and lose his job, or choose to resign retaining some dignity and privacy and receive a reference.
The EAT determined that the meeting was not conducted "with any regard to normal and fair practices and procedures" and expressed disapproval with the choices presented to the employee. However, it ultimately decided the dismissal was not unfair considering the summary dismissal of the employee to be justified even though the employer had relied on its own "modified procedures". The employee's own behaviour was deemed to be so serious and significant that it made it impossible for the employment relationship to continue.
Derogatory Facebook post
In the second case, the EAT awarded €5,000 to an employee who published a derogatory Facebook post regarding his store manager.
The post was published following a phone conversation during which a manager allegedly spoke to him in a "condescending manner" before hanging up. The manager denied the employee’s allegation that she had hung up on him up to 14 times when he tried to call back, testifying that the employee had "abused her terribly on the day in question". The employee offered to resign and made a full apology for what he had done. In response he was told he needed to "cool-off". The employee sent a further email and a letter of apology. However, at a subsequent disciplinary meeting the employee was informed that his actions were considered to be gross misconduct and he was dismissed. He challenged this dismissal before the EAT, which found that the flaws in the employer's policies and procedures were such as to render the dismissal unfair. It was admitted by the employer in evidence that no alternative sanction had been considered. In making its decision to award the employee the sum of €5,000, the EAT stated that it had been influenced by the fact that the employee had contributed significantly to his dismissal.
These decisions highlight the need for employees to consider very carefully their use of social media in the context of their employment. In addition, employers should ensure that clear policies exist in respect of the appropriate parameters for employees using social media.
Contributed by Catherine O'Flynn and Nuala Clayton of Willliam Fry.