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Regular readers of this Blog will be aware that a number of my previously published articles have commented on individuals being dismissed from employment because they posted offensive or ill advised comments on social media platforms.
Such dismissals can be potentially fair grounds for termination of the contract of employment because the employer will able to claim that the employee’s behaviour (or misconduct) has caused reputational damage.
Section 98 of the Employment Rights Act 1996 makes it very clear that that acts of misconduct committed by the employee can constitute fair grounds for dismissal.
An interesting case which was reported today is McAlpine v Sodexo Justice Services (Sodexo Ltd) ET Case 4121933/18 where McAlpine, a prison officer employed at Her Majesty’s Prison Addiewell, lost his claim for unfair dismissal. On the facts, the Edinburgh Employment Tribunal held that Sodexo, the employer, was justified in dismissing McAlpine for posting offensive comments about Muslims (amongst other things) on Facebook while he was off duty.
It was not a competent defence put forward by McAlpine that some of the remarks which he posted were not his own, but rather those of the far right activist and campaigner, Tommy Robinson (real name Stephen Yaxley-Lennon).
Sodexo had a clear social media policy for its employees and the relevant sections can be found below:
“6.1 You must avoid making any social media communications that could damage our business interests or reputation, even indirectly…
6.2 You must not use social media to defame or disparage us, our employees or any third party; to harass, bully or unlawfully discriminate against employees or third parties; to make false or misleading statements; or to impersonate colleagues or third parties”.
In a section entitled Miscellaneous Rules, individuals were informed about the following conditions governing their employment with Sodexo:
“Employees must be honest at all times, in connect with their employment and must not breach the trust and confidence that is provided to them by the Company or Client. … Employees must not engage in, condone or encourage any behavior that could be regarded as harassment, bullying, victimisation or discrimination”.
Significantly, Sodexo had also stated that a “… breach of any of these rules would be considered gross misconduct”.
The Employment Tribunal was satisfied that in deciding to dismiss McAlpine for misconduct, the employer had followed its disciplinary procedure correctly and the ultimate sanction of termination of his employment was within the band of reasonable responses.
It is worth noting that the employer’s disciplinary procedures were fully in accordance with the current ACAS Code of Practice.
In these circumstances, it can hardly be surprising that McAlpine lost his case.
A link to the Employment Tribunal’s judgement can be found below:
Copyright Seán J Crossan, 3 September 2019
Seán Crossan's Scots Law 
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