4. Social networking — the key cases

In 2007, the TUC described the UK’s then 3.5 million Facebook users as “3.5 million HR accidents waiting to happen”. That number has since shot up to around 29.8 million, or some 58% of the 51.4 million people online.

The first part of this Chapter summarises the most important recent cases in which employees have been dismissed as a result of using social media to comment about work. It draws some conclusions and sets out some practical advice for reps. It also highlights other examples taken from media coverage. The second part of the Chapter looks at other misconduct dismissals involving use of IT facilities.

Social networking

In Preece v JD Wetherspoon PLC (ET2104806/10), a manager was dismissed for making abusive comments on Facebook about two customers who had threatened her in the bar where she worked. They then phoned her to continue the threats, shouting: “Get your f**king P45 ready because you’re out of here”. Wetherspoons argued Ms Preece should have used its 24-hour “hotline” available to support distressed staff. Instead, she used her Facebook page to vent with abusive comments about the customers.

Ms Preece argued that her dismissal was unfair because the comments could only be viewed by her closest Facebook Friends — around 40 to 50 people (as opposed to all 646 Friends). This argument failed, in part because one of the “close” Friends had reported her postings to her manager.

But in Taylor v Somerfield Supermarket (2010, unreported), a dismissal was overturned. Ms Taylor was dismissed for bringing Somerfield into disrepute after posting a video on YouTube showing two colleagues hitting each other with plastic bags. The tribunal found the dismissal unfair because the Supermarket produced no concrete evidence of loss or reputational damage. The supermarket’s name was not mentioned on the clip and only somebody familiar with their uniform would have made the connection. The tribunal was influenced by the fact that there were only eight hits on the video clip.

In Whitham v Club 24 Limited t/a Ventura ET/1810462/10, Mrs Whitham was a junior customer services officer at Ventura with a clean disciplinary record. The company provided customer services support to Skoda — part of the Volkswagen group. Her dismissal for comments made on Facebook was overturned by the employment tribunal as unfair. After a difficult day, she had posted, without naming her employer, Skoda or Volkswagen, “I think I work in a nursery and I don’t mean I work with plants”, followed by: “don’t worry: takes a lot for the bastards to grind me down — LOL”.

Her privacy settings restricted her comments to her 50 Facebook Friends but the comments came to the attention of her line manager. She was dismissed despite apologising and agreeing her actions were inappropriate, and even though there was no evidence that Volkswagen cared about her comments. There was a policy on “confidentiality” which warned staff that “posting information about your job on the internet (for example, on Facebook)” might lead to disciplinary action, but there was nothing confidential about her comments.

Finding in favour of Ms Whitham, the tribunal described her as a “sacrificial lamb”, and said it would be a “very strange world” where a company the size of Volkwagen really would end an important commercial agreement with the company just because of some quite mild comments, not referring to Volkswagen, made by a relatively junior employee. A reasonable employer would have taken account of mitigating circumstances, including her previous clean disciplinary record, her apology and the possible contribution of personal difficulties, including her son’s death and her husband’s infidelity and would have offered her demotion as an alternative to dismissal. There was evidence that she would have accepted this.

Even though she succeeded in her claim, her compensation was cut by 20% to reflect the fact that her conduct “contributed” to her dismissal.

In Crisp v Apple Retail (ET/1500258/2011), Mr Crisp worked in an Apple store and posted derogatory comments on Facebook about Apple and its products, referring, for example, to his “Jesusphone” and complaining an Apple application “f**ked up my time zone for a third [time] in a week”. Again, he made the comments on a “private” Facebook page, outside working hours. A fellow worker printed off his posts and gave them to the store manager. He deleted the posts as soon as he realised he was in trouble but he did not apologise, and Apple claimed he was not cooperative in the disciplinary process. He was dismissed for gross misconduct. Two other Apple staff who had posted negative remarks about Apple products in the past had received final warnings instead of dismissal. But Apple argued that a key difference between them and Mr Crisp was that they had cooperated and apologised.

Mr Crisp’s claim for unfair dismissal was unsuccessful. The main reason he lost was because Apple had a clear social media policy and spelled out, both in the policy and throughout its induction process, that publishing comments critical of Apple products or the Apple brand was strictly prohibited, and that the company placed exceptional importance on maintaining its “image”. Mr Crisp’s training covered, for example, how to present himself in public, in online social networks and on blogs, emphasising the importance of the Apple brand as a “core value”.

He argued unsuccessfully that his human right to privacy was infringed because he posted on a private Facebook page. The tribunal’s response was that “the nature of Facebook (and the internet generally) is that comments by one person can very easily be forwarded on to others”. This was not a case of an employer hacking into his Facebook page, and in these circumstances, Mr Crisp did not have a “reasonable expectation of privacy”, so Article 8 (the right to privacy) was not engaged. Even if it had been, the tribunal decided that Apple’s actions were justified and proportionate to protect its right to preserve its reputation. The tribunal agreed that Article 9 (Mr Crisp’s right to freedom of expression) was triggered, but Apple’s decision to limit employees’ freedom of expression in order to protect its reputation was also judged “proportionate”, especially given the nature of Mr Crisp’s comments. They were “not the type of comment that is particularly important to free expression (for example, political opinions) and they were clearly potentially damaging to [Apple’s] reputation”.

In Stephens v Halfords PLC (ET/1700796/10), Mr Stephens was a deputy manager at Halfords with six years’ service and a clean disciplinary record. He was off sick with stress when Halfords began consultation about a proposed reorganisation. He attended one consultation meeting, at which he was told discussions during the meeting were confidential and not to be disclosed. He misunderstood this instruction, mistakenly believing confidentiality lasted only as long as the consultation was ongoing. He wanted to carry on discussing the proposed changes with other employees, so he set up a Facebook page called “Halfords workers against working three out of four weekends”. Shortly after setting up this page he checked the company’s social networking policy and saw that disciplinary action was threatened for staff who make negative public statements about Halfords. Realising he had made a mistake, he quickly took down the page.

Unfortunately, Halfords had already found out about it and started disciplinary action. At his disciplinary hearing, Mr Stephens explained he would not do it again and that he felt his judgment must have been impaired by his stress. He apologised unreservedly. Even so, he was summarily dismissed. In his employment tribunal claim, the tribunal found his dismissal unfair and outside the range of reasonable responses available to an employer. In particular, the tribunal was influenced by his clean disciplinary record, his remorse and apology and his swift removal of the page as soon as he realised it breached company policy, as well as his decision to wait until the consultation period had ended before putting up the page, mistakenly believing this meant discussions were no longer confidential. He was awarded compensation of £11,350.

What guidance can reps draw from these cases?

• An employer with a clear, well-communicated social media policy — especially an employer who provides training about the policy and its importance — will have a much stronger case for dismissal than one who does not. An employer able to demonstrate a high value placed on brand reputation, communicated to staff, is even more likely to succeed.

• Just because an employee breaches a social media policy, it does not mean that a dismissal will necessarily be fair.

• Every case is different but in any disciplinary situation, an employee should stand a better chance of keeping his or her job if s/he:

• apologises unreservedly and immediately;

• has a clean disciplinary record;

• the comments do not name the employer or identify the employer’s business and it is not possible for readers (including co-workers) to identify the employer from the context. (Where co-workers are Friends (whether or not they join in the conversation) it may be impossible to overcome this hurdle);

• there is no evidence of actual or potential damage to the employer’s reputation; and

• the social media policy (if any) is not clear, not well communicated, or if no training is provided on it.

• Any “mitigating circumstances” should be emphasised. For example, in the Club 24 case, the tribunal felt that a reasonable employer would have taken into account Ms Whitham’s personal problems and would have offered her demotion as an alternative to dismissal.

• Human rights-based arguments (Article 8 (Privacy) and Article 9 (Freedom of Expression)) are unlikely to succeed unless the employer can be shown to have hacked into a Facebook page. Just because a comment is made to a limited number of Facebook Friends, this does not make it private.

• The bottom line is that all these employees lost their jobs. Even those who succeeded in claims for unfair dismissal won compensation not reinstatement. And they left behind a damaging negative internet footprint which is likely to impair their future employment prospects for some time.

• Of those whose claims succeed, compensation is often reduced significantly to mark the tribunal’s view that they “contributed” to their own dismissal by their actions.

• Common sense says that best advice is never to discuss work on Facebook at all.

• And be very careful who your Facebook “Friends” are. Avoid having, for example, a line manager, as your Facebook Friend. Teaching union the NUT issues specific guidance to teachers, cautioning against befriending children or other members of the school community on social networking sites and suggesting teachers “should consider carefully the implications of befriending parents or ex-pupils”.

• Even though it is the employer’s responsibility, it is a good idea for reps to remind members periodically of the risks associated with Facebook and other social media sites. (The GMB, for example, has issued new guidelines, see below).

There is feedback from reps in the LRD survey suggesting that employer reaction may be becoming more “hard-line” in dealing with this issue and that whilst “a couple of years ago, you might have expected a final written warning, now dismissal is the norm” (police), or that employers are pursuing a “zero tolerance policy” in relation to these incidents (retail banking). For a cynical employer facing difficult economic times, a misconduct dismissal offers a cheap way of reducing headcount without the need to make a redundancy payment.

Where dismissal is not the result, other disciplinary outcomes reported to LRD (usually with final warnings) have included demotions, enforced changes from night to day shift with loss of shift premium and withdrawal of discretionary bonus. And since “disciplinary record” is often used as a selection criterion for redundancy, the employee is left vulnerable to selection for redundancy in any future round of job cuts.

One rep told LRD he sensed a falling off in the number of disciplinaries involving social networking, suggesting that workers might be becoming more switched on to the risks.

The general union GMB recently reissued guidance on social networking and blogging. The main recommendations are:

Do:

• think carefully before posting anything online. Remember that anything you post could end up in a public space and/or being read by your current or future employer;

• have a clear understanding of what comments about your work your employer will tolerate;

• understand your employer’s policy. It may, for example, ban Facebook access at work or only allow access during break times. One rep told LRD how workers at his employer got into difficulty because instead of closing social networking sites, they simply minimised them, leaving a record suggesting a breach of the policy. Revised guidance has since been issued;

• understand the privacy controls of any social networking or blogging site you use;

• use access controls to limit who can see posted information and remember who you have granted the most detailed level of access. Check privacy settings often and remember who your Friends are;

• use a separate email address to register with networking and blogging sites — preferably one that does not include your name;

• remember that people are not always who they say they are;

• if you do run a blog, make sure you state clearly that all views are your own personal opinions and not those of your employer.

Do not:

• publish your email address, phone number or home address;

• choose an email address that reveals private information about you;

• publish any other identifying information, such as date of birth.

The TUC has issued guidance about blogging. It says: “As you probably spend more time working than doing anything else, you may want to blog about work, but first stop and think about it. Blogging about existentialism or football may be harmless, but discussing your boss, your colleagues or any aspect of your work could lose you friends, cost you your job and even land you in court facing a defamation suit.”

And even if you change jobs, given the developing recruiting practices described elsewhere in this booklet (see Chapter 3), the blight of a negative internet footprint has the potential to come back and haunt you for many years, even if you bring a claim in the employment tribunal and win.

Whistleblowing

In an exceptionally rare case, it might be possible to argue that social media was being deployed to “blow the whistle” on the employer, entitling the worker to protection under the Public Interest Disclosure Act 1998. Advice on whistleblowing law can be obtained from the specialist charity, Public Concern at Work, whose contact details appear in the Further Information section at the end of this booklet.

Chapter 5 sets out some guidance on negotiating a workplace policy on social media use, drawing in particular on the recent research paper commissioned by Acas: Workplaces and social networking: the implications for employment relations (2011).

Other misconduct dismissals involving use of IT facilities

Dismissals resulting from use of social media to comment on employers are a fairly recent phenomenon, but there are many other ways in which a worker can end up disciplined or dismissed for alleged misuse of IT facilities.

Examples include:

Personal use: An employee was found to be fairly dismissed for using the internet at work to book her holiday. She had been warned about using the internet for personal use and made almost 150 searches over four days of work time.

Time wasting: Two employees were dismissed after a company investigated the circulation of private joke emails. The company said the dismissals were because of the inappropriate nature of the emails but also for the amount of time wasted in the process. The employment tribunal said the dismissals were fair.

Security: The Employment Appeal Tribunal ruled it was fair to dismiss a worker for accessing part of the computer system which was password protected and which he did not have authority to use. But in another case a tribunal found it was unfair to dismiss in a case where an employee accessed part of the system which he was not authorised to enter when he had a legitimate business reason to do so and he could have obtained the same information by telephone.

Downloading: An employment tribunal found in favour of an employee who had been dismissed for loading inoffensive games software on to his computer. The company alleged that his action caused a serious computer virus. But the tribunal said there was no evidence that the virus had been caused by him and did not accept his action amounted to a breach of trust.

There are also examples of dismissals relating to the access of offensive material. In general this type of activity is likely to be regarded as gross misconduct and a fair reason to dismiss. As with any misconduct dismissal, the basic requirements of fair dismissal must be met in these cases. In particular, an employer will need to show that it carried out a fair investigation and acted within the range of responses of a reasonable employer in deciding to dismiss for that reason. Where appropriate, an apology should be made at the earliest opportunity. Potential arguments include:

• failure to warn (for example, through a policy) that the activity could result in dismissal;

• failure to communicate the policy (for example, through training or induction);

• unclear (or no) policy;

• inconsistent behaviour;

• disproportionate response (for example, if the activities were a one-off incident or caused no harm); and

• failure to take into account mitigating factors such as health or family circumstances or a clean record.

A fair investigation requires employees to be given the chance to view and comment on evidence obtained through monitoring, for example CCTV footage or data logs, and to understand what the evidence purports to show and how it has been obtained. Except in the most extremely cut and dried cases (for example, where CCTV results in a straightforward admission of guilt), technological evidence will not remove the need for a thorough investigation. For example:

Employers should remember that where a charge has serious potential consequences, such as dismissal, a particularly high standard of investigation is required (Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721).

Another good recent example is TDG Chemicals v Benton (UKEAT/0166/10):

Chapter 5 contains guidance on negotiating a workplace policy on monitoring and surveillance including, for example, the right to access CCTV and other surveillance material in advance of the disciplinary hearing. See also the practical examples negotiated by reps across sectors, set out in Chapter 2.