Repudiatory breach and dismissal: the bottom line
With the surge in social media use over the last few years, there has been an increase in the number of employment cases involving potentially offensive postings on social media sites by employees.
While there is still a degree of ambiguity surrounding private social media accounts used outside of work, where an employee’s posts harm their employer, broadly speaking, the Employment Tribunal and courts will balance the employee’s right to free expression against any damage caused to the employer (which could, for example, include reputational damage and losses associated with confidentiality breaches).
In the recent high-profile case of Mason v Huddersfield Giants (the club), the High Court considered whether a rugby club could justify summarily dismissing a player on the basis that his social media activity amounted to gross misconduct which, in turn, constituted a repudiatory breach of his employment contract…
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The EAT considered whether an employee who said she was too ill to resign for 18 months and who received 39 weeks’ sick pay during that period had affirmed her contract.
It is possible for employers to defend unfair dismissal claims arising from inappropriate use of social media even if the misconduct is not work-related.