Social media – be careful what you post for

This post from our contributor and legal specialist, Veale Wasbrough Vizards, explores how a solid Social Media Policy can help your school succeed in claims brought to the Employment Appeal Tribunal, using a recent high profile case as an example.

The Employment Appeal Tribunal (EAT) has recently upheld a decision ruling that a dismissal for derogatory comments about an employer on Facebook was fair.

In British Waterways Board v Smith, Mr Smith was employed by the British Waterways Board (BW) as a manual worker for 8 years. As part of his job, Mr Smith worked on a rota where he was on standby for one week in every five. BW prohibited employees drinking alcohol when they were on standby. It also had a social media policy which forbade ‘any action on the internet which might embarrass or discredit BW’.

During the investigation of a grievance raised by Mr Smith, Mr Smith’s manager supplied HR with copies of pages from Mr Smith’s Facebook account which included derogatory comments by Mr Smith about his supervisors. On receipt, the HR team investigated further and identified evidence that suggested Mr Smith was drunk whilst on standby.

A disciplinary investigation subsequently took place and several other Facebook comments were identified which were either derogatory about BW, supervisors and colleagues, or suggested that Mr Smith had been drinking on days when on standby.

Mr Smith’s manager was aware of some of the comments and had previously raised them with HR (although he had not sent screenshots). HR had not investigated at the time because they were “too busy”. Mr Smith accepted that he made the comments but said that they were just ‘banter’ and he had not in fact been drinking. He also contended that his Facebook account had been hacked and changed from ‘private’ to ‘public’.

At a subsequent disciplinary hearing, the decision-maker concluded that, irrespective of whether the comments were true, they had the potential to undermine confidence in Mr Smith’s ability to react in an emergency and left BW open to public condemnation. It was also decided that Mr Smith’s actions were a clear breach of BW’s policies and he was summarily dismissed for gross misconduct.

Mr Smith brought a claim for unfair dismissal to the Employment Tribunal (ET).

The ET found that, although the process BW followed was fair, the decision to dismiss Mr Smith was not within the band of reasonable responses which a reasonable employer would take and therefore was not fair. In particular, the ET found that BW failed to
consider Mr Smith’s points of mitigation.

Overturning this decision on appeal, the EAT found that, as the ET
accepted that a fair procedure had been followed, it must have concluded that BW had considered Mr Smith’s points of mitigation. That being so, the ET had improperly substituted its own views for that of the employer. It held that the decision to dismiss was fair.

Best practice

The very public nature of comments on social media means that the potential for reputational damage is significant. What assisted BW in this case was having very clear policies addressing the use of social media and being clear with employees about what is and is not acceptable − a practice we would always recommend. Those schools which have adopted our template employment documentation will be familiar with the operation of our Social Media Policy.

This case also highlights the importance of identifying and considering all points of mitigation when deciding on disciplinary action.

Whilst BW was able to demonstrate that the dismissal was fair in this case, even though it had been aware of (albeit had not investigated) the Facebook comments for a number of years, it would be best practice to avoid delay in investigating concerns which come to your school’s attention – not least in cases involving comments on social media, to avoid the potential for further reputational damage.

For more information, please contact Alice Reeve on 0117 314 5383.

10 tips to avoid recruitment nightmares in your school

This week, one of TheSchoolBus contributors, Fusion Business Solutions, experts in HR process and procedures in schools, has contributed this informative blogpost.

Fusion’s HR Account Manager, Lucy had recently undertaken a number of Headteacher recruitment campaigns for her schools.

Here are Lucy’s top tips for recruiting in your school:

1. Make sure you are clear on the requirements of the job and ensure they are listed in the job description and person specification. Do not rely solely on template job descriptions and express matters in plain English. If legally challenged, you will have to explain how that particular candidate does or does not meet the requirements in the person specification.

2. Use an application form rather than relying on CVs alone.  An application form makes it harder to hide gaps in employment history and makes a fair comparison of candidates easier.  It also ensures that the candidate has personalised their application for the needs of your school, and helps you to make safer recruitment decisions.

3. If possible, consider asking technical competency questions during an interview to test whether or not the candidate really does have the necessary experience.  More general questions such as ‘How would you influence change?’ are easier to answer for those who are both practiced in interview techniques and good at making things up! It is much better to ask: ‘Give me two examples of how you have directly influenced change, what was the change, what was the impact?

4. Ensure your recruiters use interview forms, so that each candidate is asked the same questions.  This ensures consistency in approach.

5. Take thorough interview notes and keep them for at least nine months.  They may be used in evidence, so make sure that all comments about candidates remain professional and relevant to the interview process.

6. If you use equality monitoring forms, make sure these are not provided to those who are carrying out the interview process, so that there is no argument of bias if a candidate is not taken forward to the next stage. Also, no information about medical history should be given to the interview panel unless it is to make reasonable adjustments for the interview process.

7. Recruiters should receive training as interviewing is not a skill that everyone has.  Your school may also want to consider investing in equality and safeguarding training.

8. Make sure that you ask to see a candidate’s original examination certificates.  It is surprising how infrequently this is done, especially with senior professionals.

9. Carry out enhanced DBS checks to verify employment history and suitability for working in your school. The safeguarding process is extremely important when recruiting new staff.

10. Take written references. Try to call the writer to verify that the reference is valid.  It is not unheard of for employees to get friends to write references for them rather than the HR department or their line manager, or to write their own reference using their employer’s headed paper!

View more of Fusion’s unique templates and guidance in their Recruitment topic on TheSchoolbus.