In the recent Employment Appeals Tribunal Case of British Waterways Board v Smith the tribunal considered whether it was fair to dismiss an employee who had made derogatory statements about their employer on Facebook.

He had been an employee for 8 years and his employer had a clear social medial policy. That policy said that the employer considered the following to be gross misconduct:- “any action on the internet which might embarrass or discredit BW (including defamation of third parties, for example, by posting comments on bulletin boards or chat rooms)”

In 2012 his manager was aware that the employee had posted a number of derogatory comments about his employer and it’s managers.

Those comments were things like: –

“(i) chipper training today and supposed to go home after it w***** supervisor told the trainer to keep us as long as he could the f***** don’t even pay u for this s***”

“(ii) hard to sleep when the joys of another week at work are looming NOT”

“(iii) ha what joy, 2 sleeps til back to my beloved work NOT”

“(iv) good old bw cant wait to see all my friends again lol”

“(v) going to be a long day I hate my work”

“(vi) that’s why I hate my work for those reasons its not the work it’s the people who ruin it nasty horrible human beings”

“(vii) why are gaffers such p*****, is there some kind of book teaching them to be total w******”

Nothing was done at the time and the comments were not repeated.

Over a year later the employee raised a grievance and in the course of that grievance investigation the manager referred HR to the Facebook comments. HR took the view that they were gross misconduct. The employee was suspended and then dismissed for gross misconduct. He appealed but was not successful and so he brought a claim for unfair dismissal in the Employment Tribunal.

At the Employment Tribunal he won his claim. The Employment Tribunal said that the decision to dismiss fell outside the band of reasonable responses which a reasonable employer might have adopted. This was because the employer had not taken into account the mitigating factors of Mr Smith’s unblemished service record and that the employer had been aware of the comments for some time and taken no action. The employers successfully appealed that decision.

That decision was overturned by the Employment Appeals Tribunal, who found the dismissal was fair.

This case clarifies that in cases where an employer has failed to discipline an employee for an earlier act of misconduct they will not necessarily lose the opportunity to take action at a later date. In this case the misconduct took place two years before the dismissal and the employer had known about it.

Another surprising element to this case is that the employer had apparently deliberately searched for evidence against an employee who was in the process of raising a grievance. The employer was allowed to use the evidence they found of past misconduct to justify summarily  dismissing him and the tribunal found that did not make the dismissal unfair.

This is another case showing how it is becoming increasingly difficult for employees to challenge a dismissal for gross misconduct even when the employer’s action do appear to be manifestly unfair.

It is also a very useful reminder to employers of the importance of having an up to date social media policy, without that it is likely that the dismissal would have been an unfair dismissal.

Fox Whitfield can advise employers and employees on social media law and we can also supply up to date policies.

www.foxwhitfield.com

0161 283 1276

Employment Law Solicitors – Head Office based in Manchester with offices located throughout the United Kingdom.

A recent case in the High Court looked at the legal issues of LinkedIn accounts operated by employees.

In Whitmar Publications Ltd v Gamage three employees set up a competing business during their employment with Whitmar Publications. The ex-employees were accused of a long list of unlawful acts such as trying to poach and using confidential information.

One of the ex-employees had managed four LinkedIn groups on behalf of Whitmar. Those groups appeared to have been used after that employees employment ended to source email addresses for the new competing business. The Employee also refused to provide Whitmar with the user name, password or any other access details for the groups.

The High Court also found that this employee’s duties as an employee included responsibility for dealing with the LinkedIn accounts, which were operated for Whitmar’s benefit to promote its business. The Judge required the ex-employees to give Whitmar exclusive access management and control of the LinkedIn groups. It also ordered them not to access or do anything that would inhibit or prevent Whitmar from accessing the LinkedIn groups. This was despite the fact that LinkedIn’s terms state that ownership of a LinkedIn account is personal to the account holder.

This new case only scratches the surface of the many unanswered questions posed by employees’ use of LinkedIn and other social media sites. If an employee uses a personal LinkedIn account for both personal and business use, or if an employee starts a new role with an existing LinkedIn accounts or groups already in place then the position remains unclear. The key question for the Court in this case was if the account was operated for the benefit of the new employer.

Employers who are worried about this should put in place policies that set out who owns business contacts on social media made by employees during their employment. Some employers require their employees to set up a separate LinkedIn account for all business activities and have a clear contractual requirement they delete any of the employer’s business contacts from a personal account when their employment ends.

Employers should also consider if it is appropriate to also have contractual provisions that seek to prevent employees from dealing with or soliciting business from the employer’s customers after their employment ends.

The Use of Social Media in the Workplace

Employment law is slowly catching up with modern technology but there are still some grey areas where social media and employment law overlap. For example: –

Who owns LinkedIn contacts?

If you are paid by your employer to build up business connections using social media your employer will own those connections. For example lists of customers created by employees during their employment should belong to their employer and not be kept after employment.

The courts have applied this to electronic address books. An employee who kept all their contacts, including their personal contacts, in their employer’s e-mail system was required to hand it over when they left as those contacts belonged to their employer.

What about LinkedIn? This is yet to be tested in the courts but a recent case indicated that an employee who used his employer’s contact database to send LinkedIn connection invitations to clients and candidates had no right to keep those connections once employment ended. The employer could demand that an employee delete those contacts made via work but not personal contacts not made in connection with the employee’s employment.

The law on this remains uncertain and employers who rely upon their employees building networks should use their contracts or policies to create some clarity as to who owns what.

Can you dismiss an employee because of their Facebook status?

Potentially yes.

There have been a large number of high profile and embarrassing dismissals because of Facebook. For example:

• An Apple Store employee dismissed for posting a series of rants about his employers on Facebook lost his claim for unfair dismissal. The employment tribunal said that Apple’s social media policy banned critical remarks about the company and that Facebook posts were not truly private.
• An employee who put as her status “OMG I HATE MY JOB!!” and referred to her boss in very unflattering terms was dismissed when she forgot that she had added her boss as a friend and he read her status.
• There have been countless examples of employees being dismissed after falsely claiming to be sick. In one example an employee was dismissed after he put his status as: “Kevin is not going to work, f… it – I’m still trashed. SICKIE WOO!”

The scale of this is huge; a Freedom of information request revealed that in the Police Force at least two police officers have been sacked, seven resigned and 150 faced disciplinary action after Facebook posts in the past four years.

Can you sack an employee for uploading their CV on LinkedIn?

Generally not, employees are free to seek alternative employment in their own time without their employer interfering.

However, there is currently a case in the Reading Employment Tribunal where an employee who posted his CV on LinkedIn is bringing a claim for unfair dismissal. His employers claim that their policy is that employees should not indicate they are interested in “career opportunities” and that this employee included disparaging remarks and confidential information about the company in his CV.