As social media such as Twitter and Facebook are becoming increasingly important in many people’s lives, it is not surprising that we are seeing an increase in employment cases involving employees’ actions on social media. Two recent Employment Tribunal decisions illustrate the importance of having a social media policy in place – but they also remind us that social media hasn’t changed the basic principles that employers must always bear in mind.
Firstly, we have Preece v JD Wetherspoons plc. Miss Preece was a shift manager at a Wetherspoons pub and one evening a group of drinkers verbally abused her and physically threatened her. The group included two of the pub’s regulars, Brian and Sandra. The group were made to leave the pub but shortly afterwards Miss Preece received three abusive calls on her mobile phone.
Miss Preece was very upset by what had happened. Her version of events was that she tried to contact her manager but as he was on holiday, she vented her anger by posting on her Facebook page from her mobile phone. Various people responded to her post and a chain of comments was created. Miss Preece made several comments in the chain which mentioned Brian and Sandra by name.
Unfortunately, although she was under the impression that only about 40-50 people could see the comments, her Facebook privacy settings meant that about 600 people could see them, including the daughter of Brian and Sandra. Wetherspoons received a complaint, and after going through the disciplinary process, dismissed Miss Preece for gross misconduct.
The Tribunal found that the dismissal was fair. One of the key factors was that Wetherspoons had a clear social media policy explaining that disciplinary action could be taken if comments on social media affected the company’s reputation, and also that Miss Preece had been at work when she had made the comments.
The other more recent case is that of Whitham v Club 24 trading as Ventura. Here, Ms Whitham was a team leader working for a company which worked closely with Skoda/Volkswagen. She had a frustrating day at work and made some comments on Facebook (outside working hours) including: “I think I work in a nursery and I do not mean working with plants.” These comments could only be seen by her friends, which numbered about 50 people.
Two of her colleagues who had viewed the exchange on Facebook reported it to Club 24, and Ms Whitham was suspended. She was extremely apologetic. The company followed its disciplinary procedure and she was dismissed for gross misconduct on the basis that her comments could have damaged the relationship with Skoda/Volkswagen and were a breach of confidence.
The Employment Tribunal found that the dismissal was unfair because the company had overreacted. Ms Whitham was a relatively junior employee and therefore it was unlikely that her comments could have jeopardised the relationship with Skoda/Volkswagen. It appears that the Tribunal considered that this was more of a general moan about work, rather than something specifically directed to a particular customer or client.
Although the company had policies which referred to social media, these were aimed at breaches of confidentiality and although the company had argued that Ms Whitham’s comments fell into this category, the Tribunal disagreed.
These decisions were both at Employment Tribunal level and are therefore not binding on other Tribunals. However, the cases both show that with or without social media, employers’ decisions still need to be reasonable. Often employers assume that employees’ comments could damage reputation when it may be very unlikely to be the case. The situation should always be properly investigated and considered. Employers will always be in a stronger position to take action if they have a clear social media policy in place.
- Does your organisation have an up to date social media policy? If not, then give us a call!
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected])