We frequently discuss with clients the importance of a clear (and understood) social media policy for employees. So we thought it would be useful to collate a list of cases involving social media, to help illustrate why it’s such an important consideration.
British Waterways Board v Smith, 2015
- David Smith was sacked having published offensive comments about his employer on Facebook. The employer argued this was fair, even though he posted the comments back in 2013.
- The Employment Appeal Tribunal (EAT) found in favour of the British Waterways Board as it had a social media policy stating this breach constituted gross misconduct, and that their action was a reasonable response.
- Consideration: without a very clear policy in place, it would have been challenging for British Waterways to win the case.
Game Retail Limited v Laws, 2014
- Mr Laws, an employee of Game with responsibility across a number of retail stores, had a Twitter account which was followed by a number of those stores. Mr. Laws tweeted, a number of times, things that were deemed potentially offensive about the places he visited.
- An employment tribunal found it was unfair dismissal, as the tweets were intended for private use and Game’s policy didn’t explicitly say that inappropriate use of personal social media accounts could result in dismissal.
- However the EAT noted that certain factors hadn’t been considered properly (e.g. Mr Laws hadn’t restricted who saw his tweets, the knowledge that stores could see his tweets). The EAT held that the tweets didn’t need to relate to the employer, that Mr Laws didn’t need to have stated he was a Game employee or for there to be proof the tweets had caused offence.
- Consideration: users of social media need to understand the intricacies of the platforms, for example understanding the different privacy settings possible.
Judith Wilkinson-Reed v Launtoy Pty Ltd, 2014
- It was deemed that private messages sent on social media (referred to as Private Messages on Facebook and Direct Messages on Twitter) did not constitute a breach of the social media policy.
- Unlike comments which could be seen publicly (e.g. posted on a Facebook wall or open Twitter account), private messages were said to be equal to sending private email.
- Consideration: policies need to reflect and understand the nuances of different social network features.
Smith v Trafford Housing Trust, 2012
- An employee, Mr Smith, was demoted and received a pay cut for comments posted on Facebook against gay marriage. His Facebook profile mentioned that he worked for the Trust and he had a number of co-workers as Facebook friends.
- The court found Mr Smith’s comments didn’t constitute misconduct (as argued by the employer) as he only used Facebook to discuss personal views on topics not related to his employer, so it wouldn’t have been mistaken as a view of the company.
- Although another employee had been offended, the comments were not seen as judgemental and the views expressed moderately. The different views between Mr Smith and the other employee were seen as the result of having freedom of speech.
- Consideration: employees have a right to freedom of speech and Facebook is/was seen as a personal platform unless context suggests otherwise.
Preece v JD Wetherspoons plc, 2011
- A manager of a pub posted derogatorily about two abusive patrons on Facebook, during work. The employee thought her privacy settings meant that her comments would only be seen by a small group of people, but this wasn’t the case.
- Wetherspoons had a clear policy stating action could be taken if any content was “found to lower the reputation of the organisation, staff or customers and/or contravene the company’s equal opportunity policy”.
- The dismissal was deemed fair.
- Consideration: assume anything posted on social media could be seen by anyone, even if you have privacy settings in place.
Crisp v Apple Retail, 2011
- An employee of Apple was fired for posted a number of negative comments (whilst at home) about the company, plus a message very similar to a new company slogan shortly to be released.
- The claim of unfair dismissal was rejected, as Apple has provided very specific information about employees not doing anything that might damage the brand’s reputation, as well as providing training that referenced social networking sites out of work.
- Consideration: a clear policy and explicit training helped ensure Apple were in a strong position to defend their actions.
Witham v Club 24 Limited, trading as Ventura, 2010
- The employer was concerned that an employee’s comments on Facebook could affect a major client relationship.
- The company policy stated that inappropriate comments on Facebook were deemed as misconduct.
- Because the policy didn’t explicitly state the consequences, the dismissal was deemed unfair, as the employer didn’t look at other options first, such as a demotion.
- Consideration: social media policies need to be precise and specific.
Grant and Ross v Mite Property Services UK Limited, unreported
- A pair of sisters were sacked for excessive use of social networking. Mite Property’s policy stated employees could access the internet “outside core working hours”.
- However, the dismissals were found unfair as “core working hours’ were not clearly defined.
- Consideration: social media policies must be explicit and clearly worded on any conditions such as in this case, to stand up to scrutiny.
Examples of UK Councils experiencing issues of social media misconduct
According to information from a Freedom of Information (FOI) inquiry…
- St Helens Metropolitan Borough Council: took action against seven people in 2015.
- East Riding of Yorkshire Council: suspended 2 teachers for friending pupils on social media.
- Swindon Borough Council: suspended a worker for threatening comments towards a co-worker.
- Leeds Council: took action against two employees for racial comments made online.
- East Renfrewshire Council: suspended an employee inappropriate use of its official Twitter account.
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