Sarah Henderson looks at the approach that tribunals have taken when deciding whether an employer’s decision to dismiss is within the range of reasonable responses
Because so many employees now have access to social media, whether through the internet on workplace computers or on their own smart phone, many employers have written policies setting out what employees can and cannot do during work time in terms of accessing the internet and networking sites such as Twitter and Facebook.
While each case turns on its own facts, it is clear that employees who post comments in their own time and on their own devices may be found to have been fairly dismissed.
No general guidance
However, tribunals have been reluctant to issue specific guidance setting out the factors that can or cannot be taken into account. For instance, in Game Retail Ltd -v- Laws (weekly LELR 407), the judge said that: “The test to be applied by [tribunals]... is whether the employer’s decision and the process in reaching that decision fell within the range of reasonable responses open to the reasonable employer on the facts of the particular case.... The questions that arise will always be fact-sensitive and that is true in social media cases as much as others. For us to lay down a list of criteria by way of guidance runs the risk of encouraging a tick-box mentality that is inappropriate in unfair dismissal cases.”
In this case, the employee had tweeted comments in his own time that were mostly unrelated to work and on his own mobile. The EAT held that his tweets could not properly be considered to be private and that dismissal fell within the band of reasonable responses. It took into account the fact that, as a risk and loss investigator, his job was to monitor the Twitter activities of the company’s shops.
This approach was approved in the more recent decision of British Waterways Board -v- Smith (weekly LELR 437), and explains why so many of the cases are tribunal decisions and therefore not binding in other cases.
Employer connection and employee reaction
In contrast to Game Retail, the judge in Smith -v- Trafford Housing Trust (weekly LELR 309) found that comments made by Mr Smith, a Christian, on Facebook regarding his view that same sex marriage was “an equality too far” did not justify his demotion and amounted to a breach of contract. The High Court found that a reasonable reader of the post would not have connected the view with the employer and that it did not amount to misconduct at all.
Similarly in Mason -v- Huddersfield Giants the High Court found that Mr Mason, a rugby league player, had been wrongfully dismissed after his girlfriend tweeted a photo of his backside during “Mad Monday”, a marathon drinking event. The High Court considered it was relevant that the tweet was from his personal account and was not inextricably linked to the club. Mr Mason had also followed instructions to remove the tweet.
In British Waterways Board -v- Smith, the EAT overturned a finding by the tribunal that the dismissal of Mr Smith was unfair. The employee had made negative comments about his work and managers on Facebook including a comment that he was “on standby tonight so only going to get half pissed lol”. On the facts of that case the tribunal found that the employer had lost confidence in the employee even though the comments had been made two years earlier.
The EAT found that the employer had conducted a reasonable investigation and the decision to dismiss was in the band of reasonable responses. Mr Smith’s argument, that this was just banter between colleagues, failed.
However, in Lerwill -v- Aston Villa Football Club, Mr Lerwill, the football club’s historian, made comments on an unofficial website despite the fact that his line manager had told him not to. It was found that his summary dismissal was outside the range of reasonable responses because he was not properly informed about the consequences of re-offending.
In Whitham -v- Club 24 Ltd t/a Ventura, the tribunal found that the employer had insufficiently considered whether “relatively mild” and indeed oblique comments on Facebook, which related to Ms Whitham’s work, genuinely risked the relationship with a client. In this case, neither the company nor the client (for whom Ms Whitham was responsible) was named. The tribunal found that the dismissal was outside the range of reasonable responses.
Human rights vs employer reputation
Some employees subject to dismissal may claim that their human rights have been interfered with, most notably the right to freedom of expression (Article 10) or their right to respect for private and family life (Article 8) under the Human Rights Act.
In Preece -v- JD Wetherspoons plc, the manager of a Wetherspoons pub posted derogatory comments about a customer on Facebook following a dispute. She thought that only a small proportion of her Facebook friends could see the comments but the customer’s daughter also saw them.
Ms Preece was dismissed and the tribunal found that, while it would have issued her with a final written warning, the decision to dismiss her was not outside the range of reasonable responses. Ms Preece also argued that she had a right under Article 10 to freedom of expression but the tribunal found that any interference with that right was justified by the employer’s legitimate concerns about their reputation.
In Crisp -v- Apple Retail (UK) Ltd, Mr Crisp made negative comments about Apple products and expressed his feelings about his treatment by the company after they refused to support a transfer to the US. He raised issues of Article 8 and Article 10.
The tribunal found that Article 8 was not engaged because he did not have a reasonable expectation of privacy in the circumstances. Apple had not hacked into his Facebook account, but instead the matter had come to light because a colleague had passed the information on to managers. The tribunal went on to say that, even if Article 8 had been engaged, Apple’s interference with it was justified and proportionate in the circumstances to protect the company’s rights, specifically its reputation.
The tribunal found that Article 10 was engaged but again the interference was justified and proportionate to protect Apple’s reputation. It was relevant in this case that Apple made clear in its policies that employees should not comment on the company’s products on personal websites and that disciplinary action would follow.
Where an employer has a written policy in place, an employee is unlikely to be able to rely on a breach of their human right to privacy. In the recent decision of Barbulescu -v- Romania (weekly LELR 459) the European Court of Human Rights decided that the employer had the right to check the employee’s private communications.
Contrary to an express policy, Mr Barbulescu used a work-related instant messenger account to send and receive personal messages from his brother and his girlfriend. He was dismissed as a result and complained that the evidence relied on to dismiss him was obtained by infringing Article 8 under the European Convention on Human Rights. A majority of the judges disagreed, finding that the interference with Article 8 was justified in the circumstances.
Harassment
In some cases, a tribunal may find that the comments amount to harassment.
For instance, in Teggart -v- Tele Tech UK Ltd, the tribunal found that Mr Teggart was fairly dismissed for making multiple comments on Facebook about a colleague’s promiscuity, which the company categorised as harassment. It was relevant that he had named the company in one of the posts but the tribunal criticised the company’s failure to properly investigate whether there was in fact a real risk to their reputation. Mr Teggart’s response to being challenged was also relevant in that he asserted that he had the right to say what he liked on Facebook and his reaction to receiving the disciplinary letter was to make a further post.
Breach of trust and confidence
Finally, in Trasler -v- B&Q Ltd the decision to dismiss was found to be outside the range of reasonable responses. Mr Trasler had posted on Facebook that his “place of work [was] beyond a ****ing joke” and that he would soon be “doing some busting”. The tribunal found that there was insufficient evidence of an undermining of trust and confidence. It did however make a finding of 50 per cent contribution.
Were the criteria too subjective?
Criteria that are too subjective are likely to be unfair. For instance, criteria such as “attitude”, “commitment” or “suitability” are risky because the scores may be influenced by a manager’s personal feelings about individual employees, or by discrimination.
There have been a few cases in which subjective selection criteria have been found to be fair, but they must be applied in an objective manner. So, for example, in one case "company values" was accepted by the tribunal as a valid criterion. Subjective criteria can be more easily justified where the selection process involves an employee applying for a different job.
In that case it may be easier for an employer to fairly dismiss employees who do not meet the criteria for the new role."
Conclusion
These cases give some indication of factors that are likely to be considered relevant to a tribunal, particularly in unfair dismissal claims. As well as the nature of the post itself, these will include: the strength of the connection between what is posted and the employer or a client, the genuineness of the risk of reputational damage, the employee’s reaction or remediation, and whether there was a reasonable expectation of privacy on the part of the employee.
Human rights considerations are also relevant because there is inevitably a tension between an individual’s right to express themselves and their beliefs, and an employer’s desire to protect their business and reputation.
Facebook and Twitter thrive on spontaneous comment but it can be difficult to control who is going to end up seeing a “heat of the moment” post about a bad day at work. In others, comments made some time ago can come back to bite employees when they least expect it. Despite employers being increasingly aware of the issues and tailoring policies accordingly, it is likely that social media will continue to be the downfall of many an employment relationship.