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Facebook and misconduct dismissals

It is important that employees and employers understand their employment law rights and obligations when using software and social network sites such as Facebook. Facebook, and the internet generally, are now widely used as a means of communication which  has led increasingly to increasing employment law related issues and cases of dismissal and consequent issues of fair or unfair dismissal. It is important that both parties understand their rights in relation to such a dismissal.

Recent cases highlight the importance, and usefulness, of employers having a properly drafted internet use policy including a policy on use of social media. For employees, the lesson is not to use Facebook or similar media as a way of venting frustration about work.

Unfair Dismissal

Employment Rights Act 1996

(1)In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—

(a)the reason (or, if more than one, the principal reason) for the dismissal, and

(b)that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2)A reason falls within this subsection if it—

(a)relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)relates to the conduct of the employee,

(c)is that the employee was redundant, or

(d)is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

 

As well as establish a fair reason an employer must also follow a fair procedure. An employer must be able to establish that, at the time of dismissal:

 

• It believed the employee to be guilty of misconduct.
• It had reasonable grounds for believing that the employee was guilty of that misconduct.
• It had carried out as much investigation as was reasonable in the circumstances.

Generally speaking an employee has a right to freedom of expression under article 10 of the European Convention of Human Rights (ECHR), as incorporated under the Human Rights Act 1998. This is however subject to general principles such as protecting the reputation of others and preventing the disclosure of confidential information.

 

In the case of Preece v JD Wetherspoons the tribunal considered whether a manager of a pub had been fairly dismissed after posting negative comments about customers on her Facebook page and whether her right to freedom of expression had been infringed.

 

Preece v JD Wetherspoons

 

This case follows Gosden v Lifeline Project Ltd, where an employee was fairly dismissed for sending an offensive e-mail from his home computer to his colleague’s home computer

 

Miss Preece was employed as a shift manager by JD Wetherspoons plc. The company’s policy, which she was aware of, about the posting of comments on websites such as Facebook stated that employees should not write or contribute to a blog, where the content lowers the reputation of the company or its customers. In these circumstances the company reserved the right to take disciplinary action where this occurred.

 

Miss Preece and a colleague, Mr. Ainsworth, were subjected to an unpleasant incident in which they were threatened by a group of people, particularly two customers. Miss Preece acted quite properly and asked to the customers to leave. In the early evening, Mr. Ainsworth took four abusive phone calls from someone he believed to be the customers daughter.

 

Around 6.30pm, Miss Preece began a Facebook discussion with colleagues about the events of the day, naming the customers and saying, among other things, that she hoped Sandra would break a hip. Miss Preece was on duty during this discussion.

 

Two weeks later the company received a complaint about the Facebook discussion. The company began a disciplinary investigation. Miss Preece admitted that her actions were in breach of company policy. She argued that her privacy settings meant that her Facebook messages would have been seen only by between a maximum of 40 to 50 close friends, rather than all her friends.

 

Miss Preece was invited to a disciplinary hearing and was subsequently dismissed for gross misconduct. The pub considered that writing inappropriate comments on Facebook about customers breached the Policy and amounted to gross misconduct. Miss Preece’s conduct had lowered the reputation of Wetherspoons and resulted in a fundamental breakdown of trust and confidence between them. Miss Preece’s internal appeal was unsuccessful and she brought a claim for unfair dismissal.

 

The tribunal dismissed the claim. The Facebook activities were in the public domain, regardless of the employees belief about the privacy of her communications and its actions were justified in view of the risk of damage to the employers reputation. It also found that her Facebook entries did not reflect her upset and anger at the situation, because the discussion took place over a lengthy period of time, well after matters had calmed down.

 

The Employer had a genuine belief about the nature of the employees conduct and had reasonable grounds to sustain that belief, having conducted a reasonable investigation.The sanction of dismissal fell within the range of reasonable responses available. Whilst the customers behaviour was abusive towards the employee the facebook entries took place over a lengthy period of time so could not be put down to a knee jerk reaction. The fact that the employee was using facebook during work time was taken into account but that is not to say that a similar decision would not have been reached had she been using it after work.

 

Despite the employee’s belief about the privacy of her communications, her activities were in the public domain. While she had a right to freedom of expression under Article 10 ECHR, the action taken by the employer was justified under Article 10(2) because of the damage it could cause to the employers reputation.

It seems that in the circumstances a written warning may have been an appropriate disciplinary measure but the Tribunal were unwilling to find that dismissal was not also a reasonable response for an employer to take.