Preece v JD Wetherspoons plc – Employee’s Facebook Comments Constitute Gross Misconduct (18 October 2011)

Recent case law has highlighted the risks of posting inappropriate comments to social networking sites and the importance of institutions having in place a robust internet use policy for both staff and learners, including a policy on the use of social media, to manage such risks.   In the case of Preece v JD Wetherspoons plc ET 2104806/10 an Employment Tribunal, in January 2011, accepted that a manager of a pub had been fairly dismissed for gross misconduct after posting negative comments about customers on her Facebook page. 

The employer’s email, internet and intranet policy, which the employee clearly had knowledge of, stated, that employees should not write or contribute to a blog where the content lowers the reputation of the company or its customers, further, the company reserved the right to take disciplinary action where this occurred.

Whilst on duty the employee engaged in a Facebook discussion in which customers were named and inappropriate comments made.  As a result and following an investigation and disciplinary hearing the employee was dismissed for gross misconduct. An internal appeal was unsuccessful and she brought a claim for unfair dismissal under the Employment Rights Act 1996.

The tribunal dismissed the claim for unfair dismissal. In reaching its decision the tribunal made the following findings:
• The employer had a genuine belief that the employee’s conduct constituted an act of gross misconduct.
• The employer had reasonable grounds to sustain that belief as it produced evidence the employee had entered into a Facebook conversation in which she made negative comments about customers who could be identified by name.
• The employer had conducted a reasonable and fair investigation into the matter.
• In the circumstances a written warning may have been an appropriate disciplinary measure but the Tribunal were unwilling to find that dismissal was not also a reasonable response for an employer.
• Despite the employee’s belief about the privacy of her communications, the Facebook activities were in the public domain. While she had a right to freedom of expression under Article 10 of the European Convention on Human Rights, as incorporated under the Human Rights Act 1998, the action taken by the employer was justified under Article 10(2) because of the damage it could cause to the employer’s reputation.
• With respect to mitigating circumstances these had been properly considered by the employer and whilst the customers’ behaviour was abusive towards the employee it also found that the employee’s Facebook entries did not reflect her upset and anger at the situation, because the discussion took place over a lengthy period of time, well after matters had calmed down.
• The employer had offered the employee the correct level of support and provided a duty of care for the verbal abuse and physical threats she had received.

The fact that the employee was using Facebook during work time was taken into account by the tribunal in this case.  It is likely however that a similar decision (that posting comments to a social networking site in breach of the employer’s policies constitutes gross misconduct justifying dismissal) would have been reached if she had been using it after work given the fact the inappropriate comments were made during a discussion which was clearly about work and identified particular customers by name.

The right an employee has to freedom of expression under Article 10 of the European Convention on Human Rights did not prevent dismissal where exercise of the employee’s right damaged the reputation of the employer.  

Although this is an Employment Tribunal decision and therefore not binding on other tribunals it is an interesting example of how the law is developing with respect to the impact of social media on the workplace.

For further information read a summary of the judgment or the full transcript of the case. 

JISC Legal has resources on e-Safety which explore the risks and liability in more detail including the publication “Facing Up to Facebook: A Guide for FE and HE”  

Posted on 18/10/2011