Following the decision of the EAT in Scotland’s first social media misconduct case, Lorna Davis discusses the guidelines that can be drawn from the emerging caselaw.

Morton Fraser acted for Scottish Canals in its successful Employment Appeal Tribunal (EAT) appeal against a previous decision by the Employment Tribunal concerning Mr David Smith, a former employee, who was dismissed after making comments on social media that he had been drinking alcohol while on standby duty.

The Employment Tribunal held that Mr Smith’s dismissal was unfair on the basis that the decision to dismiss fell outside the band of reasonable responses open to an employer due to various mitigating factors which it considered that Scottish Canals failed to have regard to.

Mr Smith was a waterways operative responsible for the maintenance and general upkeep of canals and reservoirs. One of his duties involved being on standby duty which involved responding to emergency situations which occurred outwith Scottish Canals’ normal working hours.

During this time, Mr Smith made a number of comments on Facebook. These included highly offensive and derogatory statements about his managers and also bragging about drinking alcohol at a time when he was tasked with responding to a potential emergency situation.

Mr Smith believed that he had his Facebook settings set to “private” and therefore his page wasn’t open to the public. He said that he would not have posted the comments if he had known they would be accessible to the public and that they were just “banter” with his friends.

The Employment Tribunal held that, even though it considered that Scottish Canals had genuinely believed that Mr Smith was under the influence of alcohol while on standby duty, which Mr Smith had denied, that trust had been “repaired” by Mr Smith carrying out his duties “apparently without incident” for a number of years since the comments were made.

The EAT decided that the Employment Tribunal’s decision in favour of Mr Smith had erred in law by substituting its own view for that of Scottish Canals. It allowed Scottish Canal’s appeal and held that Mr Smith’s dismissal was fair.

This is the first Scottish appellate level decision dealing with social media misconduct and, in line with the earlier English EAT decision in the case ofGame Retail Ltd v Laws, the EAT once again declined to lay down any general guidance for employers tasked with addressing social media misconduct.

In Game Retail Limited v Laws, the EAT held that as cases involving social media were likely to be fact-sensitive, the relevant test would continue to be that laid down in Iceland Frozen Foods, that is, whether the decision to dismiss fell within the “band of reasonable responses open to an employer”.

While employers may feel that they are left with attempting to reconcile conflicting Employment Tribunal decisions on social media misconduct, there are some general guidelines which can be taken from the employment tribunal and EAT decisions.

It is clear that a well drafted social media policy, which applies not only to conduct at work but also at home, can be crucial in defending any argument that a dismissal was unfair.

Privacy settings have also not been regarded as key given that, even if these are restricted, employees would have no control over the onward transmission of social media comments. It might be advisable, however, to make explicit reference to this in any social media policy.

Effective communication of social media policies is also crucial. A conclusion that there is an impact on client relations or reputational damage should not hastily be arrived at. A proper assessment of any actual and/or potential harm should be made prior to considering the appropriate disciplinary sanction.