Following on from last weeks blog on 'Managing social media professionally' I thought this week I would hand pick a few Facebook dismissal cases to see what we can learn from the Employment Tribunal (ET) decisions.
In EA Whitham –v- Club 24 Ltd t/a Ventura the dismissal was held to be unfair. In this instance the employee, Ms Whitham who was employed as a team leader made some inappropriate comments on FB after a difficult day at work. She posted “I think I work in a nursery and I do not mean with plants” and then later commented “Don’t worry, takes a lot for the bastards to grind me down. LOL [laugh out loud]”.
Her posts lead to a flurry of comments from her FB friends, who were former and current employees. This resulted in two complaints which lead to the inevitable disciplinary action taken against her. During the tribunal, clarity was sought around the primary reason for Ms Whitham’s dismissal. The conclusion drawn was that the primary reason was the breach of confidentiality. The company also alleged that a client had expressed some concerns over the comments, however due to the lack of evidence the tribunal concluded that this allegation was unfounded.
It is worthy of noting that Ms Whitham admitted to the comments being made, however she argued she did not breach the social media policy, the private settings on her FB account were enabled, she was taking anti-depressants at the time and she had a good working relationship with the client in question. Further, she sent in a “grovelling” letter of apology.
Given the above the tribunal held that the sanction of dismissal did not fit the crime, particularly as the appeal manager herself had seriously considered reducing it to a warning.
It was a different tale for the employee in Preece v JD Wetherspoons PLC. Ms Preece, a pub manager posted “Fu**ing hag! Hope her hip breaks”, after one of her customers subjected her to a torrent of abuse and physical threats. The offensive comments continued for a lengthy period after the incident. The posts were seen by the customer’s daughter who raised a complaint.
The company not only had a social media policy in place but they also had a policy dealing with abusive customers which stipulated, that where members of staff were subjected to abuse, and felt threatened, they should ring the dedicated “hotline” and speak to a senior manager. The reason for Ms Peece’s dismissal was on the basis that she did not contact the hotline and the offensive posts continued for a lengthy period after the abusive incidents, therefore they were not considered to be made in the heat of the moment.
The message from the case law is clear. Having a social media policy does not give employers carte blanche to dismiss employees who make any FB posts which fall within the confines of the policy. Employers must also consider the seriousness of the conduct and whether there are any mitigating circumstances.
If you are dealing with a social media dismissal contact me for a free 30 minute consultation on 0113 350 4030 or at firstname.lastname@example.org to make sure that you stay on the right side of the law.