As more and more employees are able to publicly express their personal opinions on social media, when can such behaviour justify dismissal?
Social media is responsible for many woes! Viral news stories, be it Nokia tweeting expletives in November 2013, the Tata Motors (the Indian car company making Range Rovers) senior employee who Tweeted the security codes to start the cars with the Keyless Ignition, or Luton Airport joking about a fatal plane crash in Chicago (March 2013), have shown that a corporate image can be hugely affected by a wrongly timed or inappropriate Facebook post or Tweet. All the more reason, one might argue, to ensure that employers control not only their ‘official’ social media output but also that of their employees.
However, what about the right to free speech – a key entitlement enshrined within the ECHR and the Human Rights Act 1998. This question is currently stretching the minds of many Employment Tribunals.
Why has the alleged use of social media been considered unacceptable by the employer? To date, there are three distinct areas which are recognised as misconduct: loss of reputation for the employer; bullying/harassment and effect on productivity. The last of these is easily dealt with and is less an issue of content than quantity. Simply, if an employee is using social media during working hours and to an extent that it interferes with the work they are contracted to do, then the employer is entitled to take disciplinary action. Normally, an employer will need evidence rather than simply relying on an assertion. Whether a dismissal can be justified will depend on the usual ‘band of responses’ test and Claimants can be assisted by pointing to a lack of any policy on what constitutes ‘excessive usage’. Conversely, employers can protect themselves by ensuring that they have comprehensive and accessible policies in place.
In Whitham v Club 24 Limited t/a Ventura ET1810462/2010, the Claimant was employed by Ventura to liaise with Volkswagen and Skoda. She was dismissed after making derogatory comments about co-workers on her personal Facebook page, on the basis that those remarks could jeopardise Ventura’s relationship with Volkswagen/Skoda. The Tribunal found that the dismissal was unfair, pointing out that the employer did not provide evidence of reputational damage and, in any event, the Claimant had not made reference to Volkswagen/Skoda anywhere on the site.
The importance of a third-party being able to recognise a link between the employee’s social media and the employer was also considered in the widely reported case of Smith v Trafford Housing Trust  EWHC 3221 (Ch).The Claimant brought a breach of contract claim against his employer who had demoted him after a colleague had reported anti-homosexual posts on the Claimant’s Facebook page. In giving judgement for the Claimant, Briggs J commented that:
“Mr Smith’s brief mention at the top of the page that he was employed as a manager by the Trust (as part of a note form CV which also identified his school, his place of residence, his marital status and his date of birth) could not possibly lead a reasonable reader to think that his wall page consisted of, or even included, statements made on his employer’s behalf… viewing the entries on Mr Smith’s wall for the period in question as a whole, it is obvious, and would be obvious even to a casual reader, that he used Facebook for personal and social rather than work related purposes” [paragraphs 57-59 abridged]
The link between the employee and employer is of less importance when dealing with harassment or bullying cases.
Simply claiming that a Facebook page or Twitter feed is ‘personal’ cuts no mustard with Tribunals, especially not the Newcastle ET who upheld the Claimant’s dismissal in Weeks v Everything Everywhere Ltd 2503016/2012. The Claimant would often make posts on his private Facebook page expressing unhappiness in his job, referring to his workplace as ‘Dante’s Inferno’. A co-worker who was also his Facebook ‘friend’ saw the posts and informed their manager. Unsurprisingly, the Claimant objected to this and refused to stop making similar posts at the request of his manager. Had he stopped there, it is arguable that he could have properly contested dismissal – although the Tribunal obviously disliked the Claimant’s attitude, no evidence had been adduced to show a loss of reputation. Instead he made several personal remarks against the co-worker intimating that he would take ‘action’. It was this that justified his dismissal, the Tribunal finding that it was a clear case of gross misconduct.
Despite the commentary of the High Court in Smith, there is little in the way of general guidance from the EAT on these matters. To a large extent that is because much of the contentious issues are judgements of fact at first instance. Nevertheless, important cases are about to be heard and Tribunal guidance is expected.
Berkeley Solicitors can provide company documentation which assists in these situations. Contact Adrian Berkeley for further details contact: firstname.lastname@example.org, or call us on 0161 371 0011.