The uses and abuses of social media has been a staple of employment tribunal cases for many years. Lots of people enjoy social media and some individuals cannot resist the temptation of letting off steam and posting ‘warts & all’ content about their lives, including the hours that they spend (or should spend) at work. Unsurprisingly, some of these posts have a way of getting back to colleagues, leading to upset, disputes and disciplinary action on occasion.
Although posts which are disparaging or expose internal concerns can feel very uncomfortable for an employer, not all negative content will amount to reputational damage which would justify disciplinary action. Employment tribunals tend to expect employers to have a ‘grown up’ approach to posts and accept that employees will sometimes air real life grumbles, which may not reflect well on the business, but may not in themselves justify action. Of course, every case should be decided on its own merits and our round up of some recent cases illustrates the need for a careful analysis of whether the post and surrounding circumstances could amount to misconduct.
A slightly unusual social media twist for our first case: the employee in London Borough of Hammersmith and Fulham v Keable was not responsible for the post, but he was the unwitting star of video footage shared on social media without his knowledge. Mr Keable was a long-serving council employee, who had made controversial remarks about Zionism during a demonstration outside Parliament. He attended the demonstration in his own time, but the footage of his remarks came to the attention of the council and he was dismissed for serious misconduct following a disciplinary investigation.
In a decision which went on to be upheld at the Employment Appeal Tribunal, the employment tribunal found that the decision to dismiss fell outside the band of reasonable responses, pointing to failures in the process, which included not giving Mr Keable the opportunity to comment on the specific allegation against him.
Certainly this was a case in which the glare of publicity, including the involvement of an MP, made the process a difficult one. It does underline the importance of spending time to carefully draft the allegations which are put to the employee, both as a matter of fairness so that they can appropriately prepare their case to defend themselves and to ensure that the investigation focuses clearly on exactly what has occurred and how it amounts to possible misconduct.
Our second case, Henderson v Ashgill Care Home, concerns a care home worker who was dismissed after her employer discovered racially-discriminatory remarks on her Facebook page. The employment tribunal found that she had been unfairly dismissed for posts which had been posted on her personal Facebook page. Although the posts pre-dated her employment, her personal page identified her as an employee of the care home, they could be readily found and she was also responsible to for care home’s social media. The tribunal found that the posts were in breach of the care home’s social media policy and that it was part of her role to understand and apply the policy. It found that the posts were in breach of that policy and that a reasonable investigation had taken place, which allowed her to respond to the allegations.
However, the tribunal found that two procedural defects at the appeal stage rendered the dismissal unfair. Firstly, Ms Henderson had not been made aware of further investigation that was carried out after the disciplinary hearing and, secondly, a letter written by her son, claiming responsibility for the posts, was not taken into account. The appeal manager refused to take the new evidence into account, which was in breach of its disciplinary policy.
Despite the finding of unfair dismissal, the tribunal awarded no compensation to Ms Henderson. It stated that her conduct in making the posts in breach of policy was to blame for the dismissal and that there should be a 100% reduction to the basic award. Additionally the tribunal stated its view that she would have been fairly dismissed, even if a completely fair process had been followed, and her new evidence considered at the appeal stage. It found that this justified a 100% Polkey reduction to any compensatory damages.
Although the care home paid no damages to Ms Henderson, the employment tribunal case was no doubt a costly and unwelcome distraction. The case serves as an example of the importance of following a careful procedure, even when the alleged misconduct appears highly likely to justify a fair dismissal, so that risks of costly litigation about the process are minimised.
Finally, the old chestnut of making remarks about colleagues on Facebook, the subject of Spence v Sainsbury’s Supermarkets Ltd. Ms Spence was a very long-standing employee at an Edinburgh store and her Facebook page had been created by her daughter. She was unaware that her page was public and believed that a reference to her working for the supermarket had been removed. Unfortunately, what she believed was a private message for a former colleague was a public post: a manager in fact saw a post, which described her line manager as a young idiot.
A disciplinary process against her resulted in a final written warning for 12 months being made. Relationships further deteriorated and Ms Spence raised a grievance and was also the subject of a grievance by another member of staff. Following the findings of the complaint against her a further disciplinary process took place, resulting in a warning being given. Since the final written warning she had already received was still live, this resulted in her dismissal with notice.
In her claim for unfair dismissal, the tribunal criticised the final written warning as manifestly inappropriate, particularly when viewed in the context of an unblemished disciplinary record during 23 years of service. It found that no consideration had been taken in the disciplinary process of the fact that only 8 people appeared to have been able to see the post and that the manager to whom she had referred was not named in the post and it was only when Ms Spence told the investigation who she had been referring to in her post, that the employer could determine his identity.
The tribunal concluded that the employer could not reasonably conclude that it has suffered any damage to reputation from her post and that there was no fair basis for the original warning. The case is a good reminder that employment tribunals will be willing to look back at previous warnings and assess their fairness, even when the employee has submitted no appeal at the time. It is also a salutary reminder that tribunals may be very sceptical of employers who take disciplinary action on the basis of damage to reputation, especially when any actual damage is highly unlikely.