‘Think Before You Speak’…But Definitely ‘Think Before You Tweet’: The Growing Problem of Social Networking and Dismissals

Be it on the train, at a coffee shop, or even at work, it is increasingly likely that one might catch a glimpse of a stranger’s ‘private’ world. The phenomenon to which I am referring is that which has been created as a result of the introduction of social networking.  In an age where highly advanced technology is available to the masses and is conveniently accessible at our fingertips, it was surely only a matter of time before the paths of our private/public lives collided.

As the old adage reminds us ‘think before you speak’, perhaps a more apt adaptation in modern times would be to ‘think before you tweet’. This is especially the case when one feels an urge to express their thoughts and feelings towards an employer or a client of an employer.  But what if that angry tweet or Facebook update results in one’s dismissal?  How does employment law deal with such scenarios?

Section 98(2) Employment Rights Act 1996 (ERA) sets out potentially fair reasons for dismissal. The potentially fair reason which we are concerned with in this instance is a dismissal related to the employee's conduct (s.98(2)(b)). Once the behaviour in question has been deemed to fall into this category, the second question which then requires consideration is whether the response of the employer in dismissing the employee was a reasonable one (s.98(4)).

In cases where dismissals as a result of an employee’s conduct on social networking sites have been deemed to be fair, a recurring theme has emerged. It appears that Tribunals will attach weight to an employer’s argument, where it is established that the employer has a clear social media policy in place.

In the case of Crisp V Apple Retail UK Limited [2011] ET/1500258/11, an Apple employee was dismissed for posting, whilst at home, several status updates on his Facebook account concerning the company and its products. Mr Crisp posted ‘once again, f**k you very much work’, openly criticised an Apple application and sarcastically described an IPhone as a ‘Jesus Phone’.  Before any action was taken, Mr Crisp’s last Apple-related status read ‘Tomorrow is another day, a day I hope I will forget’. This was posted a day before Apple released a tagline ‘Tomorrow is another day, a day you’ll never forget’. Mr Crisp’s employers, Apple, were informed of the comments made and as a result he was subsequently dismissed.

The unfair dismissal claim brought by Mr Crisp proved unsuccessful. The judgment placed a great deal of emphasis on the fact that Mr Crisp had received specific documentation from Apple which stated that employees should not do anything which might damage the company’s image, and that the employer had provided training which directly related to conduct outside of work, with particular reference to social networking sites. It was therefore decided that Mr Crisp’s conduct amounted to a breach of the policies in place, which had been clearly explained to him, and as a consequence he had been fairly dismissed.

The same outcome was reached, on a similar principle, in the case of Preece v J D Wetherspoons plc [2011] IT L.T. Nov, 4-5.  This case concerned an employee who had referred to a               customer as a ‘f**kin hag’ on Facebook after the pub in which the employee worked received threatening telephone calls shortly after a customer was ejected. This comment was preceded by ‘f**k off, f**k off’ posted on the same social networking site immediately after the calls were received and whilst the employee was on duty at the public house.  One of the employee’s Facebook ‘friends’ informed the customer who then proceeded to notify the employer. Preece was dismissed from her position at the company.

Preece argued that the dismissal was an unfair one. This however was rejected by the tribunal, which again placed particular emphasis on the fact that the company’s social media policy had been breached. This policy explicitly stated that employees were prohibited from making comments in blogs, inclusive of Facebook, which may lower the reputation of the company or its customers.  In light of this breach by the employee, the tribunal found that in the circumstances the response by Wetherspoons was reasonable and therefore a fair dismissal had taken place.

Whilst the aforementioned cases clearly illustrate that an employee’s conduct on a social networking site can be judged to be a fair reason for dismissal, we should not lose sight of the requirements of s.98(4) ERA, namely that the dismissal must be considered a reasonable response if it is to be deemed fair.

The importance of this has been highlighted in another recent case of Whitman v Club 24 Limited t/a Ventura [2011, unreported].  Ms Whitman worked for Ventura, a company which handled complaints on behalf of Skoda. The employee posted a number of messages via her status updates on Facebook including the following:

‘Don’t worry, takes a lot for the ba****ds to grind me down. LOL’;

‘I think I work in a nursery and I do not mean working with plants’;

An ex-employee then commented ‘Ya, work with a lot of planks though!!! LOL’, to which Ms Whitman replied ‘2 true xx’.  As a result of these comments Ms Whitman was dismissed.

The tribunal heard that Ventura’s social media policy prohibited breaches of confidentiality through social media, but did not specifically state the company’s stance where the misuse of social media had a potentially damaging effect on the client’s reputation.  As no evidence was provided by Ventura to prove that the client’s reputation had in fact been damaged as a result of Ms Whitman’s comments, the tribunal held that the dismissal was unfair. It should also be noted that the tribunal, in reaching its decision, took account of the fact that the comments made by Ms Whitman were relatively mild.

Although the actions of the employer were deemed to have fallen outside the band of reasonable responses in this case, it is interesting to consider what the outcome may have been if the social media policy had been more tightly-worded to cover potential harm (as was the case in Preece v J D Wetherspoons plc) – would the tribunal have still reached the same conclusion in deciding that a dismissal would have been an unreasonable response in those circumstances?

Conclusion

Whilst the decisions in the aforementioned cases provide us with some guidance as to the stance a tribunal may take in certain situations, one cannot say with any certainty what the outcome of a future case will be as the judgments considered are those of first instance, and are therefore not binding on future tribunals.

There are however two pieces of advice that can be given, one to each the employer and employee respectively.  An employer should ensure that a clear social media policy is constructed, the details of which should be fully explained to employees. This policy should warn of dismissal as a result of any remarks made on blogs or social networking sites which may be interpreted as having a negative impact upon the company’s reputation among any potential customers and the wider community as a whole.

Arguably the most important and practical piece of advice can be provided to the employee. When unhappy or enraged as a result of your employment, take a deep breath and ask yourself: ‘By venting my frustrations on a social networking site what will I gain?’ The answer which you should reach is ‘ probably absolutely nothing’.

Jonathan Headington (Pupil).