When looking to use any social networking evidence in a disciplinary hearing an employer must be completely sure that the evidence presented is correct if they are looking to base any disciplinary outcome on this.
In the case of Azad -v- Tesco Ireland Limited UD2311/2010 the employer was bringing an employee to disciplinary for failure to follow instructions and making threats to staff members. Amongst the allegations was also assertion that the employee had set up an abusive Facebook page against his Line Manager, with whom statements reveal he had a fractious relationship.
Claims were made (and refuted by the employee) that he was struggling for a visa and made offers for a paper marriage to members of staff in order to secure a visa. The Employer further alleged that the employee threatened to “cut off the head” of the Line Manager and put it on the roof of the store, again a claim that is refuted.
The employee was also called to disciplinary for initiating a Facebook page called “females are horrible managers” and invited other employees to join.
The employee was dismissed on foot of these allegations, despite no allegations put in writing to the employee prior to the meeting. In the determination the tribunal noted that the procedures used by the employer left something to be desired, there was no evidence to suggest that the employee set up the Facebook page or comments. The tribunal awarded the employee €7,500 under the Unfair Dismissals Act 1977 to 2007, however it should be noted that the employee did contribute to this dismissal by not following directions.
The matter of social media is something that we see becoming more and more familiar with cases and one that will continue to be an issue in the future. We have posted previously on this subject, and the major thing to take from this is that an employer must be sure that the employee put these posts/comments up and that there is a detriment to the business by having these up. we saw in Kiernan -v- AWear that the sanction of dismissal was disproportionate to the actions, and this is what employers must be mindful of, they must take a step back and see is dismissal really warranted in this case or is there a more appropriate decision.
Tribunals seem to be making decisions based on context and in the context of the situation were the employees actions enough to warrant dismissal or simply a strong level of warning. Employers must take a step back and think is this something that a third-party would view as gross misconduct before taking action.