Social media is a minefield at best. There are many instances recorded in the press regarding employees posting negative comments or doing something they shouldn’t be whilst at work. Similarly there often seems to be obstacles put in the way of employers who try and deal with these issues.
Two recent cases should instil some confidence that there is good news on the horizon for employers. Even if you want to deal with historical issues or in fact specifically search for such misconduct and then take a robust stance on these things.
Williams v Leeds United Football Club
This case was dealt with by the civil courts, as it related to a claim by Mr Williams for his substantial notice pay, as a breach of contract. However similar principles apply within the Employment Tribunals.
Leeds United Football Club (the Club) dismissed Mr Williams for reason of redundancy but they didn’t want to pay him his 12 months’ notice. They then refused to pay him his notice after they discovered that he had sent an email containing pornographic images from his work email address. You may think this would clearly be a fundamental breach of contract, justifying dismissal without notice.
However, the offending email was discovered by the Club during their active “fishing expedition” to try to find a reason to avoid paying Mr Williams his 12 months’ notice pay.
Further, the email had actually been sent 5 years before the dismissal took place.
The Club did have a Code of Conduct and Social Media Policy. However, interestingly Mr Williams had not had sight of such policy.
Despite the motives of the Club during their forensic search clearly trying to find a reason to avoid paying Mr Williams’ notice pay, the significant period of time that had passed since the email had been sent, and the fact that Mr Williams had not seen the relevant policies, the court still found that the actions of Mr Williams when sending the email amounted to a fundamental breach of contract (in particular the term of trust and confidence), which allowed the Club to dismiss without notice.
British Waterways Board v Smith
This case followed the Leeds United Football Club case above but was dealt with by the Employment Tribunals.
In this case, the Employment Appeals Tribunal (EAT) found that it was fair for British Waterways to dismiss Mr Smith (their employee) without notice because he made derogatory comments about them on Facebook.
However, the interesting point here is that these comments were made by Mr Smith over 2 years before any disciplinary action was taken by British Waterways. Plus, British Waterways’ HR Department had been aware of at least some of these comments throughout at least the majority of that 2 year period.
Initially, the Employment Tribunal agreed with Mr Smith. They found that the dismissal was not fair because in their view British Waterways had not adequately taken into account the mitigating factors in play – such as his long service, an unblemished record and the rather timely delay before the matter had been dealt with.
However, the EAT overturned their decision and disagreed with the Employment Tribunal.
The EAT made the following points–
- The Tribunal cannot substitute its own views for those of the employer.
- The decision to dismiss only needs to be within the range of reasonable responses open to a reasonable employer in the circumstances.
- This range will depend on the circumstances but should not be narrowly construed.
- In this case, the 2-year delay did not matter. It did not prevent British Waterways from taking action against Mr Smith.
- It did not matter that the majority of these comments had been discovered by the employer during their deliberate “fishing expedition” in order to search for them.
More freedom for employers?
I’m sure you’ll agree that these cases show an encouraging new trend, erring on the side of employers. Social media is an ever-present and ever-growing issue and whilst I still think historical issues should always be looked at carefully, there is not a complete bar on dealing with them, even if you have known about them for some time.
This is good news for HR Professionals and their ever-growing workload, who may not get around their to-do list as quickly as you’d like.
Also, a point worth noting, there is seemingly nothing against an employer deliberately going “fishing” for incriminating things against an employee and taking action on anything discovered during that search.
A word of caution – be careful of the reason why you are conducting this search. It would be all too easy to potentially trigger a discrimination or whistleblowing claim.
As always, a robust Social Media Policy will assist you when dealing with issues such as this, but if you don’t have one it does not totally prevent you from taking action if the issues are sufficiently serious.
If you would like any further advice on this topic or any other aspect of employment law, please do contact a member of our Employment & HR team.