The Perils of Social Media In The Workplace – New case re Facebook in the workplace


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.

Facts

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.

Disciplinary hearing

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 [2007] 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!

Philip Henson, Partner, and Head of Employment Law, Bargate Murray. Twitter – PHBARGATEMURRAY

www.bargatemurray.com

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1 Comment

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One response to “The Perils of Social Media In The Workplace – New case re Facebook in the workplace

  1. John Dowling

    A number of cases have arisen in various jurisdictions concerning the use of social media and the alleged abuse of same by employees leading to the employees’ dismissals.

    From memory I recall the following (details re the cases will be available to anybody who wants next week when I get back to Ireland)

    The French Supreme Court held that the dismissal of an employee was justified because the employee had sent messages (by email) which were derogatory of persons within the company and of customers. The employee held that his emails were private and should not have been reviewed by management. The court held that he had not labelled any of the messages in question as private and as the machine was the property of the employer it was entitled to review the messages.

    A Canadian Labour Board (British Columbia) upheld the dismissal of two men who worked for a lumber company, one of whom was a workers representative, for Facebook postings which were held to contain threatening remarks, especially after management/union meetings.

    The number of Friends which the two men had on their Facebook page was deemed such that the communication could not be considered private as pleaded by the employees.

    There have also been a number of cases in various states within the United States and UK where people have been dismissed and the dismissals upheld, usually for breach of confidentiality and for abusive remarks, especially about customers, even though the Facebook or other postings were made outside working time and/or without the use of the employer’s equipment.

    Regardless of the details of the individual cases, It seems to me that company’s generally need to ensure that their policy on use of social media and emails is explicit as to what is and is not acceptable, what is and what is not reviewable by the employer, whether the equipment/software used is relevant, and what the boundaries are for comment about (1) customers or clients and (2) work colleagues, both peers and management.

    It appears from some of the case reports seen that an employee is more likely to be ruled as unfairly dismissed if the transgression was not explicitly or implicitly declared inappropriate in the company’s policy on internet and social media use. While different jurisdictions have different laws it is instructive how the various issues are being treated and lessons can be taken even if the jurisdiction is different.

    Perhaps it is time for employers to review the policy if it has not been revised in some time.

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