Legal opinion: Social media and unfair dismissal

Employment lawyer Laura Allner discusses unfair dismissal cases involving social media.

“I think I work in a nursery and I do not mean working with plants.” These words, posted by an employee on her Facebook page, resulted in her dismissal from her job. Perhaps somewhat unsurprisingly, given the relatively tame nature of her comments, the employment tribunal found her dismissal was unfair. But when is it appropriate to take action against employees using social media and what steps can employers take to protect themselves?

Facebook, with more than 800 million active users worldwide, has changed communication. Along with Twitter and other similar sites, it means that information is now available to a potentially global audience at rapid speeds and in constantly changing ways. It is also instantaneous and often impossible to claw back once it’s out there. So a quick burst of frustration tapped into an iPhone on the bus journey home can have significant consequences for both employees and employers.

Cases so far

The few cases that have made it to tribunal to date suggest that, naturally, there is no one clear rule: social-media-related dismissals may or may not be fair. Context is critical. That said, lessons can always be learned from others.

Unfair: Whitham v Club 24 Limited t/a Ventura

Whitham’s employer was concerned by the impact of her comments on its relationship with a key client, and dismissed her. Its handbook stated that posting information on sites such as Facebook may lead to disciplinary proceedings and/or dismissal.

The tribunal found that there was insufficient evidence of client pressure to dismiss Whitham. While her employer was entitled to conclude that Whitham’s comments constituted misconduct, it could have considered alternatives, such as demotion.

Unfair: J Lerwill v Aston Villa Football Club Limited

Lerwill, Aston Villa FC’s historian, came across an article about the club that was incorrectly attributed to him. The article was being criticised on an unofficial forum. Lerwill was concerned about the effect on his reputation so he posted comments in the forum (some of which were inappropriate) denying his authorship. Aston Villa FC dismissed him. In defending its actions, the employer referred to a clause in his job description requiring him to “establish and maintain favourable contacts with the general public”. The tribunal found that the dismissal was unfair, taking into account that there was no policy and that Lerwill had no forewarning of the serious consequences of his actions.

Fair: Crisp v Apple Retail (UK) Limited

Crisp was dismissed after making derogatory comments on Facebook about Apple products. Apple had given detailed training on protecting its brand, which included exercising caution when posting online. Its email and electronic communications guidelines also stated that inappropriate use may result in disciplinary action.

What can employers do to protect themselves from successful unfair dismissal claims?

Recent Acas guidance indicates that social media misconduct should be dealt with in the same way as “normal” misconduct. Clearly, then, a determining factor is the employer’s implementation of a social media policy and how the employee’s behaviour fares against this.

The tribunals have indicated that employers should consider the following specific factors in deciding whether or not social media misconduct constitutes dismissal:

Have employees been given training on:

• The potential disciplinary consequences of posting material online?
  
• Protecting the employer’s image?
  
• The impact of outside of work activities?

Were the comments likely to cause damage to the employer’s business? Consider:

• The nature of the comments made/pictures posted; did they/could they cause actual damage to the employer?
  
• Is there any disclosure of confidential information?
  
• Was the employer identifiable?
  
• How many people could and did access the information?
  
• Did any customers/clients have access to the material?

Is dismissal a reasonable response?

• Has there been a reasonable investigation?
  
• Is there any third-party pressure to dismiss?
  
• Do the comments constitute gross misconduct?
  
• Could the employee be given a warning?
  
• Have alternatives to dismissal been considered?

Keeping one step ahead

Employers should ensure that their policies clearly state that personal postings should not include anything negative about the company, its staff, customers or products and that disciplinary action may ensue if this is breached. Staff should be trained on this, and managers should also be trained on handling social media PR crises.

Given the constantly evolving nature of social media, employers need to be on guard and make certain their policies are updated regularly to take into account new technological developments.

Laura Allner is a solicitor in the employment team at UK law firm Dundas & Wilson

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What can an employer do if an employee posts a derogatory comment about it on a social networking site? If an employee has used social media to make a defamatory comment about one of his or her employer’s competitors, what should the employer do? How does a tribunal gauge whether an employee has been unfairly dismissed on the basis of misconduct?

More on recent tribunal cases:

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