7th Jun 2017

The perils of posting - social media policy and misconduct

It’s been a while since we’ve had any reported cases on the perils of getting it wrong on social media, but this case of Plant v API Microelectronics Ltd [2017] should send a stark reminder to employees to watch what they post on social media, regardless of whether he or she has long service and a clean disciplinary record. 

The tribunal found that the dismissal of a long serving employee over derogatory comments she made on Facebook about her employer was fair and reinforces the importance to employers having a clear and well drafted social media policy in place.       

The Facts 

Mrs Plant had been a machinery operator for the company for 17 years.  At the time of her dismissal she had a clean disciplinary record. 

The company introduced a social media policy and procedure to all staff.  This gave examples of unacceptable social media activity, including placing comments online that could damage the reputation of the company. 

The policy also reminded employees not to rely on Facebook’s privacy settings, as comments can be copied and forwarded on to others without permission.  It made clear that breaches of the policy could lead to disciplinary action, including summary dismissal for serious breaches under the company’s disciplinary procedure.

A few months later, the company announced a possible factory move to new premises.  This announcement caused tension and concern amongst the staff, who not surprisingly were worried about their future.   

Shortly after the announcement, concerns were raised with management over inappropriate comments Mrs Plant had made on Facebook.  Her Facebook profile was linked to the company’s computer system and identified her job title and employer. 

Mrs Plant’s profile described her as a “general dogsbody” for the company and she had also posted the following comment:

“PMSL [pissing myself laughing] bloody place I need to hurry up and sue them PMSL”

She was invited to attend a disciplinary hearing, where her defence was that she didn’t know that her Facebook was linked to her employer’s system and did not believe that the comments were aimed at the company. 

The decision was taken to dismiss Mrs Plant. The decision-maker took into account the breach of the social media policy, the derogatory nature of the comments and lack of an adequate explanation from Mrs Plant. 

On appeal, the decision was upheld by the company, despite Mrs Plant’s arguments that dismissal was unfair given her long service (17 years), clean disciplinary record and lack of computer literacy.

Mrs Plant claimed unfair and wrongful dismissal in the employment tribunal.

Employment Tribunal – Decision 

The tribunal held that the employer’s decision to dismiss fell within the “band of reasonable responses”.  

Mrs Plant accepted that her comments were in breach of the company’s social media policy. She did not review her Facebook profile when the policy was introduced, and there was nothing to stop family and friends from forwarding her comments to a wider audience. 

Applying the classic test for conduct dismissals, set out in British Home Stores Ltd v Burchell [1978], the tribunal accepted that the company had reasonable grounds for believing that Mrs Plant committed misconduct, following a reasonable investigation and fair procedure. 

As such, the decision to dismiss fell within the band of reasonable responses. 

In rejecting Mrs Plant’s claims for unfair and wrongful dismissal, the tribunal noted that the decision to dismiss a long serving employee with a clean disciplinary record could be seen as harsh – but was ultimately fair!

Practical Tips

This decision highlights the importance for employers - even those with just a few employees:

  • to have a clear policy on employees’ use of social media, and like other policies ensure that staff are aware of what it contains and what needs to be adhered to;
  • that any social media policy should include examples of what could be viewed as misconduct or gross misconduct, and the potential consequences if the policy is breached (in this case dismissal); and
  • to warn staff that they should not assume that comments made online (in this case Facebook) are private.  A common defence from employees posting inappropriate comments on social media is that they believed their comments to be private.  

Is your social media policy up to date? Click Here to request a complimentary social media policy and ensure your policy is up to scratch

Mike Patterson is an Associate Director in Berwins’ Commercial Team. He is ranked in leading industry directories and specialises in Employment and HR law.  

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