Employment lawyers and HR practitioners (and a recent juror!) will already be aware of the perils of using social media.
A fascinating judgment involving the use of facebook in the workplace was recently handed down by Liverpool employment tribunal – Miss K C Preece v JD Wetherspoons Plc (case number 2104806/10); which reiterates the need for stringent, and well crafted, employment contracts, social media and IT use policies.
Miss Preece was employed by a well known pub chain as a Shift Manager from 18 May 2009 until 14 June 2010, when she was dismissed for gross misconduct for posting comments on facebook during work hours. In May last year Miss Preece (and her colleague Mr Deacon) were working at the Ferry Boat Pub in Cheshire, when Miss Preece was subject to verbal abuse and physical threats by a group of people, particularly customers known as Brian and Sandra, who were subsequently asked to leave. Another man, Mr Deacon, then reported Sandra for drink driving.
Later that evening Miss Preece received several telephone calls at the pub from a person claiming to be Brian and Sandra’s daughter, which included a threat in the first call to “get your f’ing P45 ready because you’re out of here”. Instead of calling the 24 hour emergency situation support number, Miss Preece took to facebook to vent her anger, leading to the fulfilment of the prophecy.
Miss Preece’s first discourse on facebook involved using the colloquial expression inviting someone to depart sexually. It was noted that Miss Preece had 646 facebook “friends” in total, although she believed that she was communicating to a maximum of 40-50 close friends at the time. In response to comments from another “friend” she posted that she hoped “her hip breaks”. This led to a complaint to the customer services department from the daughter of one of the main protagonists, who highlighted that these very public comments were offensive, noting that her mother had a hip replacement in the past.
Miss Preece was invited to a disciplinary meeting to discuss allegations that she had failed to comply with the company email, internet and intranet policy: specifically blogging which was found to lower the reputation of the organisation, bringing the organisation in to disrepute, and committing acts outside of work which had an adverse bearing on her suitability for the job.
At a disciplinary hearing Miss Preece explained that she had lost control of her emotions, and that she “understood that Facebook is the wrong place to vent my anger and frustration”. She was subsequently dismissed for gross misconduct. This decision was upheld on appeal by an Area Manager who believed that Miss Preece wrote the postings whilst on shift, and found that a number of the comments were abusive and inappropriate and that she had even named customers.
Miss Preece then issued a claim for unfair dismissal (and an extra claim for non-payment of a bonus as an unlawful deduction from wages claim). JD Wetherspoons denied the claims on the basis that it had reasonable grounds to sustain the belief that Miss Preece had committed an act of gross misconduct; it had carried out as much investigation as was reasonable, and the sanction fell within the range of reasonable responses.
The Tribunal held that whatever Miss Preece’s belief about the privacy of her communications they were in the public domain. The Tribunal also took the view that JD Wetherspoons actions had been justified under Article 10 (2) in view of the risk of damage to reputation because it was clear from the communications, when read as a whole, that Miss Preece was discussing work and specific customers who had been barred. The Tribunal found that Miss Preece had not been unfairly dismissed and her claim for unlawful deduction from wages was dismissed.
Lessons to learn
There are many lessons to learn from this case. All social media users should immediately check their personal privacy settings, and think before they type in the future; all companies should have well drafted social media policies, employment contracts, and disciplinary procedures setting out non exhaustive lists of examples of gross misconduct.
Those responsible for drawing up such polices should carefully consider the circumstances where unauthorised use of social media can result in disciplinary action being taken. Such as when employees get caught using facebook to vent their anger about colleagues or customers; posting confidential information, or by posting messages or photos of their fun and frolics after calling in “sick”.
There are other interesting cases about social media, Pennwell Publishing (UK) Ltd v Ornstein  IRLR 700 being a good example concerning LinkedIn. I am aware of another situation where an employee had signed a compromise agreement with stringent confidentiality provisions (only permitting communication of the terms to professional advisers and immediate family) and that person then posted an update on their facebook page setting out a précis of the express terms of the agreement (including the amount of compensation) and also a, shall we say, direct and frank opinion of their former employer – forgetting that a former colleague was a “friend” on facebook.
The compromise agreement having been signed, and this being a breach of an express warranty in the agreement, the settlement monies were promptly returned to the employer!