For many people, social media is essential to everyday life. With the explosion of websites such as Facebook and Twitter, and more recently Google+, employers are finding themselves faced with difficult questions. It is inevitable that with the wrong privacy settings and the press of a ‘Post’ button, employees could find themselves having little control over who views the contents of their private lives online. But what can employers do when an employee uses social media to make a disparaging comment about a manager, damages the reputation of the company or discloses confidential information? Our employment law specialists explain the benefits of having a robust social media policy.
Gross misconduct
A recent employment tribunal case has shed some light on this issue, and illustrates the fine line that divides a person’s private life online and the workplace. In Preece v JD Wetherspoons Plc [2011], the tribunal held that a pub manager was fairly dismissed for gross misconduct after she posted inappropriate comments about two customers.
Miss Preece had been employed by Wetherspoons for just over three years. With an excellent work record, she progressed through the ranks into her most recent role as shift manager.
While she was on duty, two customers subjected her to an outburst of verbal abuse and physical threats. Later that evening – while she was still at work – Miss Preece took three telephone calls and on each occasion she was verbally abused. It was believed that the caller was the daughter of the two customers who had threatened her earlier that day.
Miss Preece then entered into a Facebook discussion with a group of friends, during which she made inappropriate comments concerning the two customers, whom she identified by name. She believed she was communicating with 40-50 close friends but her personal profile was visible to 646 people.
Staff handbooks and social media policy
Her contract of employment referred to the staff handbook, which included within its description of gross misconduct “acts committed outside of work, which amount to a serious breach of trust, which affects employee or customer relations or which brings the company’s name into disrepute.” The staff handbook also contained an email, internet and intranet policy, which reserved the right to take disciplinary action in the event that the content of any blog or entry on websites such as MySpace or Facebook were found to lower the reputation of the organisation, staff or its customers.
Having gone through a disciplinary process, Miss Preece was subsequently dismissed for gross misconduct, on the basis that she had failed to comply with company policy, lowered the reputation of the company and her actions had led to a fundamental breakdown in trust and confidence.
Miss Preece claimed that she had been unfairly dismissed. The tribunal rejected her claim and found that the decision to dismiss fell within the range of reasonable responses, although it said it might have been inclined to award a final written warning. The tribunal concluded that Miss Preece was aware that her actions were in breach of company social media policy. She was also aware that her comments were inappropriate, particularly given that she was a shift manager and had undertaken managerial training. In their view, her activity on Facebook was in the public domain, even though she was unaware of this.
Privacy rights
Some might say that this case is another step towards eroding rights related to privacy and freedom of expression. However, in its judgment the tribunal considered Miss Preece’s rights under the Human Rights Act 1998. It took the view that it was clear from her communications that she had been discussing work and specific customers who had been barred. On this basis, because of the risk of damage to their reputation, the company’s actions were justified.
This case clearly highlights the importance of polices and procedures regarding the use of social media both inside and outside the workplace. A tightly drafted social media policy will leave no ambiguity as to what conduct is acceptable and when disciplinary action might be taken.
For more information, contact our Employment Law team.
