Disenchanted employees have a tendency to express their feelings outside the workplace. Much of the time this may be confined to the home and possibly the likes of the local pub. It may be an irritant for employers but ordinarily it travels little further and the adverse impact on the employer is likely to be small in practice There is little that can be done to prevent this sort of thing.
Facebook and similar social networking have now opened up a whole new arena where criticism can be quite publically expressed by disgruntled employees and two cases in the past couple of years have highlighted the importance for employers in having a policy in their handbooks and/or disciplinary codes to make it clear that any use by an employee of any medium, including Facebook, Twitter and so on which lowers or has the tendency to lower the reputation of the employer will be treated as gross misconduct and may lead to dismissal.
In the first of these cases, Preece v Wetherspoons, the pub chain had a reference in its disciplinary policy to the fact that disciplinary action would be taken if social networking accounts were used by staff so that the reputation of the company was lowered. When an employee transgressed the “warning” that this policy provided and was dismissed the Tribunal considered that it was a fair dismissal. The existence of the policy was an important factor in the decision.
A later decided case, in June this year, Whitham v Club 24, went the other way. Here the company had nothing in any policy or handbook stating that uncomplimentary remarks about the company which might lower its reputation would lead to disciplinary action let alone dismissal. It did say that breach of confidentiality on Facebook etc. would be treated seriously and possibly with dismissal.
What had been posted on Facebook was pretty tame stuff. After a difficult day at work the employee, Mrs Whitham, a team leader, posted comments on her Facebook saying that she thought that she worked in a “nursery” adding “and I don’t mean dealing with plants”. She later agreed, on her Facebook, with a comment of a friend who had posted “you work with a lot of planks”. As the company was part of the VW group it was felt by the company that its relations with VW would be damaged as well as its reputation generally.
There then followed a disciplinary case against her during which she was suspended and allegedly broke - but, in fact, had not – the terms of her suspension. She was dismissed for the breach of suspension and the Facebook remarks. At the internal appeal it was decided that she had not been in breach of the terms of her suspension. The person hearing the appeal was also evidently trying to find a way of demoting Mrs Whitham for the Facebook entries but was told – erroneously – that she had no power to impose such a sanction. So, the dismissal stood on the basis of the one offence of posting the online remarks. Her clean disciplinary record was put forward in mitigation as well as the fact that she had apologized but to no avail.
At the subsequent Tribunal hearing the dismissing manager tried to contend that the Facebook remarks were enough to justify dismissal and that the breach of suspension issue was only a relatively trivial incident in his mind: this alleged triviality in his mind was not borne out by evidence of his decision-making at the time of dismissal. The Tribunal considered the dismissal was unfair because of the lack of a policy on the issue and because the comments were deemed to be fairly innocuous and limited to an audience comprising only her Facebook friends and thus unlikely to affect the company’s relationship with VW. Also it was decided that the remarks did not amount to a breach of confidentiality and were not caught by the policy on that. It occurred outside office houirs and was circulated to the fifty or so of Mrs Whitham’s Facebook friends only. There was no evidence that the remarks had in fact had an impact on the employer’s relationship with VW.
One can imagine that if the disciplinary process had been handled better another Tribunal might have been persuaded that the Facebook remarks did fall within the ambit of a breach confidentiality provision but it is clear the Tribunal was particularly underwhelmed by the evidence of the dismissing manager. In any event, any policy which an employer really ought to have in place on these matters should be aimed at catching more than just breaches of confidentiality which is too narrow a field.
This is not to say that any use of Facebook to criticize an employer will justify dismissal just because there is an appropriate policy against such use in place. Each case will be decided on its own facts. The degree of severity of the criticism, the likely, or actual extent of the broadcast, the truth of the remarks, the history of the employee are just some of the factors which an employer will need to look at. However, a good starting point for an employer is to have a policy in place referring to the issue and the importance the company places on obedience. Equally, an employee should not think that if there is no policy in place he has a free hand to say what he likes about the company and be safe from dismissal – quite apart from the defamation laws.
