With Facebook and Twitter increasingly ingrained into our everyday way of life, two recent cases highlight the need for employers to review their internet and email policies, and put in place a “social media” policy.
The first case – Preece v JD Wetherspoons plc – involved a manager whose employer became aware that she had posted several negative comments on her Facebook page about their customers. The settings on her Facebook page were set to “public”, therefore the comments she made were viewed by the “public”, not just her friends. The customers subsequently complained and the employee was dismissed for damaging the reputation of the company, and causing a fundamental breakdown of trust and confidence between employer and employee. She brought a claim for unfair dismissal at the Employment Tribunal, which was rejected.
The second case – Whitham v Club 24 Ltd t/a Ventura – involved an employee who worked for Club 24 Ltd as a team leader for Skoda, part of the Volkswagen group, and a client of Club 24 Ltd. After a hard day at work, she posted several negative comments about her employer and colleagues on her Facebook page. The settings meant only friends could view her page. However, two of her Facebook friends were also colleagues who subsequently reported her comments to their employer. The employee was dismissed because she could have damaged the relationship between her employer and Volkswagen, and had put her employer’s reputation at risk. But on this occasion, the Employment Tribunal agreed that she had been dismissed unfairly and awarded compensation.
In the first case, the employer had a clear and thorough social media policy which warned employees that they may face disciplinary action if they were found to have made derogatory comments about customers, staff and the company on social networking sites. The employer also conducted a thorough and reasonable investigation following customer complaints, which led them to establish that the comments had been open to the “public” and had been made while the employee was on duty.
In the second case, the employer failed to carry out a reasonable and thorough investigation in line with any of their own policies and procedures. There was no evidence of any actual or potential harm to their relationship with Volkswagen and the employee’s comments did not specifically refer to a client.
Both cases illustrate that as an employer you have to ensure that you not only have an up to date social media policy, but that you interpret it correctly as well.
Employers should always think very carefully before making a decision to dismiss and if in any doubt they should seek legal advice.
• Gillian Markland is head of employment law at Ingrams Solicitors.