Love it or hate it, social media appears to be here to stay. The increasingly widespread use of social media, such as Facebook and Twitter by employees, both in and out of the workplace, continues to raise issues for employers. Whilst some organisations may embrace its use, care needs to be taken in order to protect business interests such as reputation and confidentiality.
The most recent case of Whitham v Club 24 Ltd (2011) demonstrates that derogatory comments about work by an employee will not always justify dismissal. Mrs Whitham posted comments on Facebook about her colleagues after a bad day at the office. She was dismissed for putting the company’s reputation at risk. The Employment Tribunal found it unlikely that such mild comments by a junior member of staff could endanger the commercial relationship between her company and major clients. As a result the Employment Tribunal concluded that she had been unfairly dismissed.
In April 2011, the contrasting case of Preece v JD Wetherspoons plc (2011) concerned the dismissal of a pub manager for gross misconduct following inappropriate comments she posted on Facebook about some customers who had verbally abused her. The decision was upheld by the Employment Tribunal, who concluded that in view of her comments on Facebook she had not been unfairly dismissed.
These cases raise important legal issues for employers to consider. The Whitham case differs from the Wetherspoon’s case in a number of crucial ways. The employee in Wetherspoons posted comments whilst she was actually at work, contrary to the pub chain’s own internet policy, whereas Whitham made her observations outside work hours. The Wetherspoon’s employee explicitly named her customers when expressing her views, whereas Whitham did not name any specific individual. What was also important was that Wetherspoon’s had a clearly drafted internet policy which specified that disciplinary action was likely to be taken if derogatory comments were made about the organisation on social media. There seems little doubt that the pub manager had acted in breach of that policy. In the case of Mrs Whitham there was no internet policy. They had also overlooked other parts of her contract, such as whether they could demote her, as alternatives to dismissal.
In summary, these cases emphasise the need for employers to deal with social media, reputational damage and confidentiality in a suitable disciplinary, internet and social media policy. It will be important to strike a balance between the employees’ freedom to use social media appropriately and the employer’s wish to protect their business. As more people of working age use social media the number of cases coming before the courts will grow.
It is for employers to ensure that they have covered this issue adequately in their policy documents to avoid costly and damaging disputes arising in the future. If you require assistance with such a dispute or would like us to review your social media policy then please call or email.