Tweet… Tweet… Unfair Dismissal: the importance of workplace social media policies

Most of us will know well the allure of social media, whether doomscrolling on Twitter or watching strangely engrossing Tik Toks of household cleaning (aka “Clean Tok”) – I am guilty of both. It is, for better or worse, a pervasive part of modern life and employers should be taking notice. Social media outside the workplace can have a serious impact within the workplace and poses risks that employers must learn to navigate.

A recent Employment Tribunal decision in Weller v First MTR South Western Trains Ltd has highlighted the importance for employers of ensuring they have robust policies in place in this area. The Claimant, Mr Weller, was a train driver who was dismissed following a series of offensive and derogatory tweets and retweets. These offensive posts covered a variety of topics including immigration, which came to his employer’s attention.

The employer had in place a social media policy that dealt with employees’ conduct on social media outside of work and in a personal capacity. This included a requirement that employees “not behave in a way that could damage working relationships with other employees through... harassment or making derogatory or abusive comments”.

In an unusual decision, the Tribunal concluded that Mr Weller was unfairly dismissed but reduced compensation by 100% because his conduct meant he was “wholly to blame” for his dismissal. In finding unfair dismissal, the Tribunal concluded that dismissal was not within the range of reasonable responses by the employer because the decision-makers did not have a reasonable belief at the time they decided to dismiss that Mr Weller had been notified of and briefed on the social media policy. By the time of the Tribunal hearing, there was evidence that Mr Weller had in fact been briefed on the social media policy and likely had collected a copy of it, he had just failed to sign it. Mr Weller was found to have been evasive and dishonest during the disciplinary process and therefore his conduct was “blameworthy” and any compensation was reduced to zero.

There are two lessons for employers to take from this case:

• First, it is an object lesson in the dangers of social media. Mr Weller had a long tenure, was a good performer, and had a hitherto unblemished record. He said during the disciplinary process that he regretted the comments and that he had been “sucked in” by Twitter when his follower count increased during Brexit and that he would deliberately retweet material to be popular on Twitter. Social media can bring out our worst selves, so employers cannot be complacent about this issue.
• Secondly, it highlights that policies and training are essential in this area. They allow employers to manage and react far more easily to employee conduct outside of work that may have a negative impact on working relationships with others or on the employer’s external reputation. It is also key to ensure there is a clear record of employees having received and preferably agreed to those policies – this can be as simple as an email confirming receipt or a record of attendance at a meeting where the policy was discussed.

This is of course a sensitive area and employers should be careful that policies do not unduly limit the ability of employees to express political or other beliefs on their personal social media account. It can be a delicate balance to strike but social media is going nowhere so employers should not avoid being proactive in this area – doing nothing may be something employers will come to regret.