Social Media Misconduct - HR Insights

Posted on Saturday, June 8, 2019 by Kristina LusheyNo comments

Atherton v Bensons Vending Ltd ET/2411749/2018

unfair dismissal | breach of contract | social media misconduct

In Atherton v Bensons Vending Ltd, an employment tribunal held that a small employer fairly dismissed an employee who made a personal attack on the managing director on Facebook. However, the claimant's wrongful dismissal was upheld because the employer could not show that his behaviour was so serious that it was entitled to dismiss him without notice pay.

The employment tribunal upheld Mr Atherton's wrongful dismissal claim. It said that, by analogy with a constructive dismissal claim, an employer has to jump a "very high hurdle" to entitle it to treat the employee's conduct as so serious that it can withhold notice pay. In the tribunal's view, this employer could not show that the Facebook comments went sufficiently to the heart of the contract of employment to indicate an intention to no longer to be bound by its essential terms.

The tribunal awarded £5,376 in damages for breach of contract to Mr Atherton.

What are the takeaways from the above? Well if an employee, it's never a good idea to take out your frustration on social media about a Manager, or indeed in this case the MD. However, with regards to being an employer, it's important that your Contract of Employment contains a social media policy regarding behaviour and conduct, and that screenshots of the offending comments are obtained in order for disciplinary action to be taken.


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