11th May 2011

Facebook? (Face getting your books?)

In the current era of social networking with sites such as Facebook and Twitter being commonplace for many, employers are faced with potentially difficult decisions as to how such sites are tolerated within the workplace.  Imagine an employee made inappropriate comments directly to a client or customer of the employer.   Such conduct would likely be worthy of disciplinary action if not dismissal.  However, what if such comments were made using the forum of social networking sites?  The decision of the employment tribunal in Preece v JD Wetherspoons plc will be of interest to employers with similar questions.

A pub manager was dismissed for gross misconduct having made inappropriate negative comments on Facebook about two of her customers who had threatened her.   The tribunal held that in the circumstances the dismissal was fair.  The comments in question were made whilst the employee was at work.  The tribunal took the view that the comments seemed more like a joke between friends and it did not give any weight to the employee’s belief that her privacy settings meant that only her close friends could see the comments.  The tribunal found that a wider audience was able to view her entries, including relatives of the customers in question.  Accordingly, the manager was found to have breached the employer’s email and internet policy which specifically referred to the use of such sites during working hours.  The employer’s handbook specifically stated that gross misconduct would include breaches of this policy and conduct which affected employee or customer relations or brought the Wetherspoons’ name into disrepute.

The claimant employee argued that the dismissal was contrary to her right to freedom of expression under Article 10 of the European Convention on Human Rights.  However, the tribunal found that the employer’s action was justified in view of the risk of damage to its reputation.

The decision is likely to be of interest to both employers and employees.  Employers should take from the decision that if they want to deter employees from using sites such as Facebook during working hours or to make work related comments, a policy to that effect would be beneficial to form the basis for disciplinary action.  From an employee perspective, the decision should make employees think very carefully about making any work related comments on such sites or using them during work hours.

Jack Boyle
Trainee Solicitor

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