What would happen if a UK employer used Facebook to announce its intention to dismiss a member of staffThe Bosnian Premier League hit the headlines this week and, in what is becoming depressingly normal these days for football clubs, the reasons had nothing to do with its players’ prowess on the field.
Instead, one club, Drina Zvornik, decided to use its Facebook page to announce to its fans that they were sacking their coach Vladica Petrovic, before they had even made him aware that his job was at risk.
Petrovic stumbled upon the post on Facebook, initially liking a comment below that said ‘about time’.
He then left his own comment, with more than a hint of sarcasm, thanking Drina Zvornik for the heads up.
No doubt, negotiations are taking place to reach a suitable financial settlement.
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What would happen if a UK employer used social media to announce its intention to dismiss a member of staff before it had actually taken steps to sack him/her?
This will depend upon the reason the employer has for wishing to dismiss the employee. If we assume that it is not for a discriminatory reason (which can encompass, race, sex, sexual orientation, age, religion or disability), or because the worker has made a protected disclosure (often referred to as “blowing the whistle”) then the rights the employee will have will depend upon their length of service.
An employee must in most circumstances have at least 2 years’ uninterrupted service with the same employer before he/she can bring a claim for unfair dismissal, or constructive unfair dismissal if the employee resigns as a result of seeing the post. If an employee does not have this, then in reality, there is little he/she can do if they find out through a social media platform that they are going to be dismissed. However, finding out they are going to be dismissed is not the same as being dismissed and they will remain employed (and will be entitled to be paid) until their employer does actually dismiss them. Unless the employee has committed an act of gross misconduct, he/she will also be entitled to notice or to receive a payment in lieu of notice and any other contractual benefits.
Employees with 2 years’ service can claim unfair dismissal and employers will need to have a fair reason for dismissing and also to follow a fair procedure before doing so. A fair procedure will usually involve investigating the issue, explaining to the employee in advance what he is accused of and giving her/him the opportunity to state her/his case before reaching a decision. Employees should be given the opportunity to appeal the outcome.
The real problem for an employer who has already announced their intention to dismiss an employee before (or even during) a disciplinary procedure is that they will not be able to demonstrate that they acted fairly by considering the evidence, listening to the employee’s explanation and considering alternative sanctions.
The Tribunal will have to find that the outcome was pre-determined and the dismissal will be unfair. Even in these circumstances, it may be possible to limit the compensation awarded to the employee (and sometimes reduce it to nil) if the employer can demonstrate that even if it had followed a fair procedure, it would have dismissed the individual anyway. But this will only apply if the dismissal was for a fair reason. In conduct dismissals, the employee must have committed an act of gross misconduct or have a live final warning on their record and have committed a further act of misconduct before they can be fairly dismissed.
It is also worth remembering that these types of mistakes are not limited to social media posts. An email sent to the disciplinary manager telling him to dismiss the employee will, potentially, have the same consequences. Emails between HR and managers are not protected by legal professional privilege and have to be disclosed to the employee before the hearing.
The person making the decision is required to consider the evidence and to make up their own mind without pressure from other people within the organisation.
Getting this wrong can be very costly.
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