Social media misconduct - What employers and employees each need to get right? Part 1

There are no special rules, and that is the point

Where an employee is dismissed over something they posted, the tribunal asks the same question it asks about any conduct dismissal. Did the employer genuinely believe the employee was guilty of misconduct, did it have reasonable grounds for that belief after a reasonable investigation, and did dismissal fall within the range of responses a reasonable employer might have adopted?

That test can cut either way. In British Waterways Board v Smith, the Employment Appeal Tribunal upheld the dismissal of an employee who had posted derogatory comments about his supervisors on Facebook, and had boasted about drinking while on standby, despite the posts being two years old and defended as banter. The tribunal below had substituted its own view. The EAT said that was not its job.

What employers should not take from that case is a general licence. The decision was upheld because it fell within the band of reasonable responses on those particular facts, not because offensive posts justify dismissal as a rule.

Offence is not the same as gross misconduct

The leading authority is now Higgs v Farmor's School, decided by the Court of Appeal in February 2025, with the Supreme Court refusing the school permission to appeal in June that year. Mrs Higgs, a pastoral administrator, was dismissed after a parent complained about Facebook posts (most of which were reposts), criticising the teaching of gender and relationships in primary schools. She used her maiden name, posted from a personal account, and did not identify her employer.

The Court of Appeal held that the dismissal was unlawful discrimination on grounds of religion or belief. Her beliefs were protected. Where a dismissal is prompted by the way someone manifests a protected belief, the employer must show its response was proportionate. Here it could not. The language was objectionable but not grossly offensive, there was no evidence that the school's reputation had, in fact, been damaged, and nothing suggested her views had ever influenced how she treated pupils.

The practical lesson for employers is uncomfortable but clear. Reputational risk asserted in the abstract, with no evidence of actual harm, is a thin basis for dismissal. The court accepted that the school was entitled to investigate. It was the leap from investigation to dismissal that failed.

Private accounts and private groups are rarely "private"

Employees often assume that a closed group, a personal phone or a pseudonymous account puts them beyond reach. It generally does not.

In Young v Royal Mail Group Ltd, decided by the Employment Appeal Tribunal in June 2026, an employee with over ten years' service posted two messages in a WhatsApp group set up by local union representatives during the 2022 industrial dispute. One was straightforward abuse of the employer. The other told two named colleagues to choose sides, adding that the wrong answer would result in their car being blown up, followed by "lol". He was dismissed for gross misconduct and argued he had been dismissed for taking part in trade union activities.

The tribunal rejected that, and the EAT upheld the decision. The forum does not determine the character of what is said in it. A union group chat is not a protected space simply because it is a union group chat and abuse aimed at an employer is not, without more, the advancement of union aims.

Employers should not read that as a licence to trawl group chats. Monitoring staff online engages data protection obligations, and the Information Commissioner's Office has published detailed guidance on monitoring workers that expects monitoring to be justified, proportionate and, in all but the rarest cases, transparent. Covert monitoring is a last resort, not a default.

What changes this autumn and next January?

Three dated developments matter.

From 30 October 2026, the Employment Rights Act 2025 strengthens the duty to prevent sexual harassment from taking reasonable steps to taking all reasonable steps and introduces liability where a worker is harassed by a third party such as a customer, client, contractor or visitor, and the employer cannot show it took all reasonable steps to prevent it. That third-party liability covers harassment related to any protected characteristic, not only sexual harassment, and can arise from a single incident. Where a harassment claim succeeds and the preventative duty has been breached, compensation can be uplifted by up to 25 per cent on awards that are not capped.

This reframes the social media question entirely. Abuse of your staff by a customer on a public page, or in a comment thread under your own post, becomes your liability unless you can show you took all reasonable steps to prevent it.

Since 1 October 2026, the time limit for bringing most employment tribunal claims rises from three months to six.

From 1 January 2027, the qualifying period for ordinary unfair dismissal falls from two years to six months, and the statutory caps on the compensatory award are removed altogether. Anyone with six months' service on that date is protected immediately. It is worth correcting a widespread misunderstanding here: the proposed day-one right to claim unfair dismissal was dropped shortly before the Act received Royal Assent. Six months is the settled position.

Taken together, a far larger group of employees will be able to challenge a social media dismissal, they will have twice as long to do it, and the financial ceiling on what they recover has gone.

In the Social media misconduct - What employers and employees each need to get right? Part 2 article, we look at what a social media policy needs to do, how to investigate, and what employees and anyone on the receiving end should know, including where the criminal law applies.

Whichever side of this you are on, the position usually turns on detail: what was said, who could see it, what connection it had to work, and what was done next. If a post has put your business or your job at risk, get in touch with Gareth Edwards, Partner in our Employment team before you act, and certainly before you dismiss.

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