Gross misconduct dismissal for Facebook comments – two outcomes

1

In one case (Crisp v Apple Retail) an employee sacked after comments made on a ‘private’ Facebook page were made public has had his appeal for unfair dismissal rejected.

This appeal decision rested largely on the fact that the employer had a clear social media policy in place and had made it plain throughout the induction process that comments on products and critical remarks about the brand were strictly prohibited. Interestingly the tribunal also took into account that these things would be particularly damaging for Apple as image is so central to its success.

Although the derogatory comments were made within ‘private’ parts of the website, the tribunal decided that since friends could copy and pass on the information the employee was not able to rely on the right to privacy contained in Article 8 of the European Convention on Human Rights (covered in the UK by the Human Rights Act 1998). He retained his right to freedom of expression under Article 10, but Apple successfully argued that it was justified and proportionate to limit this right in order to protect its commercial reputation against potentially damaging posts.

What can we learn from this?

This recent case provides guidance for on how to prevent employees making damaging statements on social media and how to respond if they do.

The decision serves as a word of warning for employees who use social networks. Once posted, it will be difficult for employees to show the necessary degree of control over Facebook comments and they are unlikely to attract privacy protection even if the user’s privacy settings limit their circulation.

The case also remind us that employers should put in place a comprehensive social media policy that prohibits derogatory remarks about the business and its products on social networks, and states clearly that a breach of the policy could result in disciplinary action, up to and including summary dismissal.

2

In another case (Whitham v Club 24 t/a Ventura) it was found that the frustrations about work posted on Facebook by an employee were ‘relatively minor’ and her dismissal had been unfair. When they were revealed to her manager she was suspended and a disciplinary process followed.  She was dismissed for gross misconduct because her comments could have damaged the relationship between the company and a customer, and secondly for a breach of confidence.

The appeal tribunal found that the comments made by a relatively  junior member of staff would not damage the commercial relationship.  It also commented on the handling of the case by the employer – initially considering the comments as ‘not too horrendous’ and then changing its mind, and not realising that demotion was a viable alternative acceptable to both sides.

What can we learn from this?

It is necessary to distinguish between general moans about work on social networking sites, which may be compared to complaining about work in the pub, and are unlikely to be grounds for dismissal, and comments that are insulting and directed towards customers and clients, which can be grounds for dismissal.

Also, when implementing a social networking policy, employers need to make sure that managers involved are fully aware of the options open to them, and that they cannot change their minds on an employee’s conduct without a clear explanation why.