Dismissal for comments on social media fair, but wrongful

A dismissal may be wrongful, if it is made in breach of contract e.g. without paying any notice pay that is due.  Where misconduct is sufficiently serious that it constitutes gross misconduct, the employer is entitled to dismiss the employee summarily i.e. without paying notice pay. 

In a recent case, the employment tribunal held that the dismissal of an employee for posting negative comments on social media regarding their employer was fair, but due to the tribunal finding that the misconduct did not constitute gross misconduct, it awarded the employee a sum equivalent to the notice pay they should have received at the time of their dismissal. 

In this case, the employer had a practice of giving a discretionary Christmas bonus gift to its employees.  Due to financial restraints, it reverted to giving staff a bottle of alcohol as a Christmas gift. The Claimant and another employee complained about this in the workplace.  Additionally, the Claimant posted on his colleague’s Facebook page comments (among others), that, “He [the managing manager] spends a few grand on a new dog, then we get told ‘no bonus this year’ but we can have a bottle!!!” and in a later post again, “well, he can stick his bottle where the sun doesn’t shine because I refuse to be insulted in this way!!!”. Following an investigation, the employer dismissed the employee on the basis of the derogatory comments made on his colleague’s Facebook page regarding the managing director. 

The employee brought a claim for unfair dismissal and for wrongful dismissal (i.e. breach of contract) in respect of the decision to dismiss and to dismiss without notice pay.  The employment tribunal decided that the dismissal was fair in that the Claimant admitted the derogatory comments made on Facebook regarding the managing director and that, given the employer was a small company, the Christian name of the managing director could identify the managing director of the company to anyone who viewed the posting on the colleague’s site and knew the company.  However, the tribunal doubted that the misconduct was as serious as the employer viewed it to be, given that the Claimant was merely accusing the managing director of “penny-pinching’’ and scrooge-like behaviour. For this reason, the tribunal determined that there were insufficient grounds for a gross misconduct dismissal and so awarded the Claimant a sum of just over £5,000 in respect of the notice pay he should have received.