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16th February 2017

Termination due to Twitter posts

Many of us take the view that 2017 is a new year with a fresh start, and that all the issues which you moaned and groaned about in 2016 are now a thing of the past…but are they?

In the case of Creighton v Together Housing Association Ltd ET/2400978/2016 the Employment Tribunal held that an employer had fairly dismissed an employee for his derogatory twitter comments, despite these having been posted a number of years ago.

Background

The employee initially commenced his employment with his employer as an apprentice in 1987, before becoming the Lead Gas Engineer in 2014. In his capacity as a Lead Gas Engineer, he was required to manage a team of Engineers.

Following allegations of bullying in the workplace against the employee in November 2015, he was suspended on full pay, pending an investigation. During this process, the employer uncovered various derogatory posts on the employee’s “open” twitter account, which made reference to his colleagues and his employer. The comments varied in nature, but included expletives against his colleagues, along with derogatory comments.

As a result of this information, his employer commenced disciplinary proceedings for both the comments and the allegations of bullying. It is understood that the employee was apologetic for his comments and alleged that at the time he posted the comments (around 2 to 3 years ago); he believed these to be private. The employee also stressed his long service which was almost 30 years.

The Company concluded that there was insufficient evidence to support the allegations of bullying, however, concluded that due to the contents of the tweet, this was sufficient to amount to gross misconduct.

During the disciplinary process, the employer relied on a specific provision in its Staff Handbook which categorised “defaming the organisation or damaging its reputation by use of social media” as an act of gross misconduct.

The employee brought a claim for unfair dismissal which the Employment Tribunal rejected. The Tribunal considered that a reasonable investigation and process had been carried out and that the decision the employer had made was reasonable.

Top Tips

  1. Check your disciplinary policy as to what type of conduct can amount to gross misconduct;
  2. Do you have a social media policy in place, which supports and/or potentially reinforces the disciplinary policy;
  3. Are you carrying out a fair and transparent process, which could render the process reasonable;
  4. Be aware that even if conduct is historic, there may be scope to rely on this for dismissal purposes;

Is the dismissal within the band of reasonable responses? It isn’t for a Tribunal to substitute its view for that of the Employer, but to assess the fairness of the process and whether the decision fell within the band of reasonable responses.

*All information is correct at the time of publishing

Julie Duane

Napthens LLP – Employment Law Advocate

Julie is one of our Employment Law Specialists from Napthens Solicitors. Read more

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