“I am sure I work with some absolute morons – management don’t know their a*** from their elbow and the customers aren’t much better.” “I can’t be bothered with work – I can feel a sick day coming on…lol.”
If an employee within your company posted these comments on his personal, but public Facebook page, what would you do? That was the scenario presented to a large audience attending a Mock Employment Tribunal, organised by Wilkin Chapman Solicitors as part of Lincolnshire Business Week.
The breakfast event, held at the University of Lincoln, saw Partner and Head of Employment, Teresa Thomas act as Employment Judge Thomas, with her colleagues, Tom Martin and Oliver Tasker acting for the Claimant and Respondent respectively.
In the case, the Claimant, John Hunt, had been dismissed from his position as a Supervisor at a Garden Centre called Leafy Lane because he had posted the comments on his Facebook account.
The scenario was laid out as follows:
The posts had been seen by the son of Clive Lewis, the Claimant’s manager, who had brought them to his attention.
John had more than 900 Facebook ‘friends’ including work colleagues and a business contact. His profile was public and clearly stated where he worked.
Mr Lewis, who admitted feeling angry and let down, suspended John Hunt so that an investigation could take place the next day.
During the investigation, John Hunt claimed he was not aware the company had a Social Media Policy, despite inducting new staff on all company policies, and being at work on the day that the Social Media Policy had been explained to employees in a training session. He offered no apology or explanation, only that he had posted the comments after a ‘stressful day and a few drinks’.
John was invited to a disciplinary hearing, to be held just three days later. During the hearing, a further inappropriate post was discovered and put to John Hunt, who still offered no apology for his actions.
Following the disciplinary he was dismissed on the grounds of Gross Misconduct for (i) breaching the firm’s Social Media Policy and (ii) bringing the company into disrepute. He was informed of a right to appeal. John Hunt lodged an appeal, but it was rejected as it was submitted a day after the prescribed deadline.
John Hunt engaged with the ACAS Early Conciliation process, and he submitted his claim for Unfair Dismissal shortly afterwards to the Employment Tribunal.
During the mock hearing, Judge Thomas and the audience heard arguments and counter-arguments; John Hunt and his representative, claimed he was not aware of the Social Media Policy, that he was not given enough time between the investigation and the disciplinary hearing and that the posts were just made in the heat of the moment and to friends. Further, his exemplary, unblemished record had failed to be taken into account. As a result, he claimed that it was unreasonable to dismiss him for Gross Misconduct. In respect of the allegation of reputational damage, it was further argued that whilst the posts may have been seen by the public, there was no evidence that the company’s reputation had actually been damaged as a result – that was just assumption.
Judge Thomas considered four main issues:
Did John Hunt know, or should he have known, of the existence of the Social Media Policy?
Were John Hunt’s actions in breach that policy?
Had the company been brought into disrepute as a result of Mr Hunt’s Facebook posts?
Did the dismissal fall within the range of responses of a reasonable employer?
Judge Thomas was satisfied that John Hunt ought to have been reasonably aware of the Social Media Policy and that a reasonable employer would also have considered his actions to have breached that policy. Therefore, she considered that John Hunt’s actions did amount to Gross Misconduct and so his Unfair Dismissal claim failed. That being said, due a lack of any substantive evidence, she ruled that reputational damage had not been proven and therefore this allegation was not considered as part of the dismissal.
This topical Tribunal case shows that businesses need to carefully consider any disciplinary allegations and ensure that they can be proven through evidence. Reputational damage can be used but hypothetical or potential damage is not sufficient, evidence is required to substantiate damage through statements. The case also highlighted that staff need to be aware of company policies and ideally training should be carried out on important areas such as social media expectations.
If you need assistance with any disciplinary issues or policies and procedures then please contact out expert employment team.
