Social media and employment – Tribunal gives a firm "poke" to Facebook posting employee

The use of social media such as Facebook and Twitter by employees continues to create headaches for businesses. The line between work and play is becoming increasingly blurred and leaves businesses uncertain as to how much control they can have over employee use of such media. Employment lawyers and businesses alike have been keen for some guidance from the courts as to when intervention is acceptable and the case of Preece v JD Wetherspoons Plc does just that.

Miss Preece was a shift manager with JD Wetherspoons at a pub in Cheshire. During one particular shift Preece was subjected to a shocking torrent of verbal abuse and physical threats by a group of people, including two regulars, Brian and Sandra. Brian and Sandra were eventually asked to leave the pub (after Preece was threatened with a cane!) Unfortunately Preece did not get to work the rest of the shift in peace and soon received three abusive calls from an anonymous caller who was thought to be Brian and Sandra's daughter. Preece was subjected to further abuse and told by the caller to "get your f*!@ing P45 ready because you are out of here"...

According to Preece, incensed by this abuse and unable to contact her manager who was on holiday, she began to vent her anger by posting on her Facebook page from her phone. A chain of messages began which was contributed to by friends and colleagues. During the course of the chain, Preece mentioned Sandra and Brian by name and made a number of comments such as "f*!@in moaning old hag". Preece thought that her privacy settings meant her comments could only be viewed by school friends and colleagues (around 40-50 people). In fact they could be seen by around 600 of Preece's "Friends", including, you guessed it, the daughter of Sandra and Brian, Miss Roache.

A complaint was made about Preece's comments and after an investigation and disciplinary hearing Preece was dismissed for gross misconduct. The Employment Tribunal found that Wetherspoons acted fairly and within the band of reasonable responses in deciding to dismiss her.

The following factors were important in reaching this decision:-

• Preece had been at work when making the comments;
• Wetherspoons had a clear and detailed email and social media policy which expressly referred to the use of social media whilst at work and stated that disciplinary action could be taken should the contents of any online statement (including pages on sites such as MySpace or Facebook) "be found to lower the reputation of the organisation, staff or customers…". Preece had signed to indicate acceptance of this policy;
• Preece's contract of employment expressly provided that Wetherspoons could terminate her contract if she was found guilty of gross misconduct and the Handbook specified that failure to comply with the email/internet policy could amount to gross misconduct;
• Wetherspoons carried out a thorough investigation and during the disciplinary proceedings the mitigating factors were taken into account;
• Her manager genuinely believed that the comments did not reflect her upset and anger at the customers but was more of a joke between friends;
• Wetherspoons did have an emergency line whereby Preece could have contacted a manager if she wished to discuss her concerns.

Comment

This case highlights the importance of having well drafted email/internet policies which cover the use of social media. Such a policy, properly drawn to the attention of staff, will give you confidence that you can take appropriate disciplinary action should the use of such media threaten the reputation of your business. If you have not yet updated your policy to deal with social media, or you have done so but think it might need a review, we would of course be happy to help.

Source Wedlake Bell