Caught in a whirlwind

A number of recent decisions by the Employment Tribunals have clarified their approach to cases involving the use of social media by employees. Philip Pepper reviews the judgments and looks at how employers should react.

The use of social media has grown significantly in recent years and currently shows no signs of slowing. We need only look at the impact that social networking had on the recent riots to understand the potential impact both inside and outside of the workplace.

Given recent technological advances, employees no longer need employers' IT equipment to access social media. This makes monitoring difficult, and there is often a blurring of boundaries between work and home. Employees can send work emails and access social media on smart phones from the comfort of their homes or whilst at work.

Regardless of whether boundaries have been blurred, employers will continue to be vicariously liable for any discriminatory or defamatory comments made by employees and it only takes the slip of a finger for a private conversation to be suddenly thrust into the public domain. Employees need to appreciate that they can be disciplined and/or dismissed for breaches of social networking or electronic communication policies, even when they send emails from their home PCs or when engaging in Facebook conversations about work in their own time: the scope for damage is that much greater where the communication is recorded and capable of transmission to a potentially wider audience.

There have been some recent cases involving employees letting off steam about work on Facebook which give a useful indication of how Employment Tribunals might assess decisions which employers take about their staff.

In Witham v Club 24 Ltd t/a Ventura ET/1810462/10 an exasperated team leader in a company which provided customer services for Volkswagen made general comments about her workmates and working conditions to her friends on Facebook. Her comments were along the lines of “I think I work in a nursery and I do not mean working with plants.” Facebook “friends” reported the team leader’s comments to senior management and she was dismissed for misconduct on the basis that her behaviour had damaged the relationship between her employer and Volkwagen.

The Tribunal decided that the dismissal of the employee for comments which were fairly innocuous fell outside the band of reasonable responses available to the employer - especially where the employer hadn’t shown that the relationship with Volkswagen had actually been damaged: while the Volkswagen representative had been informed that a disciplinary investigation was to be begun against the employee, there was no evidence that Volkswagen considered the Facebook comments had any adverse effect on its relationship with the employer company. The Tribunal considered that the team leader had been treated as a “sacrificial lamb”.

Although the company had various policy documents and its Employee Handbook referred to the posting of information by employees about their job on the internet through social networking sites, this was in the context of preventing breaches of confidence and here the Tribunal decided that the information the employee disclosed through her Facebook account did not breach any confidence.

In Preece v J D Wetherspoon plc ET/2104806/2010, a shift manager at a Wetherspoon pub had endured a particularly bad day.  She and a colleague were subjected to what a Tribunal described as a shocking torrent of verbal abuse and physical threats by a group of people including a couple who were asked to leave the pub by the manager. It was accepted by the Tribunal that the manager had dealt with a very difficult situation in a professional way.

But then she let down her guard and entered a Facebook conversation with several work colleagues about her experiences with the customers that day, making disparaging remarks about the couple in question. Her conversation was picked up on Facebook by the couple’s daughter who complained to Wetherspoon. The company’s disciplinary process resulted in the manager’s dismissal. Here, the employer’s policies were clear in explaining the consequences if an employee’s conduct damaged its reputation. The Tribunal found that the dismissal had been fair in the circumstances.

Although she admitted she had breached the various policies, the manager argued that the privacy settings on her Facebook account provided limited access to the discussion and could not be viewed by everyone and therefore her dismissal infringed her right to privacy. However, the Tribunal found that her discussion on Facebook had in fact been in the public domain.

Teachers have meanwhile come under recent criticism and fallen foul of the Facebook curse, particularly where they have failed to ensure that their privacy settings are adequate. An example is a teacher who was dismissed for posting comments about her class on Facebook. However, although she argued that her Facebook settings only permitted her "friends" to see them, it was ultimately one of those "friends who reported her. Another example is a teacher who was dismissed for accessing a dating website during lessons. However, in this instance the Employment Tribunal found the dismissal unfair for a number of reasons, including the lack of consistency in dealing with breaches of its policy and the sanctions applied to others.

What should employers do?

The lesson here is for employers to have policies on their employees’ engagement with social media, which make clear that, even outside the workplace, such conversations can have an adverse impact on the organisation.

Employers also need to react reasonably – distinguishing between situations where employees are just letting off steam and those where their comments are undermining the organisation’s brand. Social media is here to stay and is being used by many as a form of employee engagement and communication: employers might be seen as gagging employees from expressing their personal view and restricting their freedom of expression if they are over-proscriptive about staff use of social media. So policies might require employees to state that their views don’t necessarily reflect the views of their employer.

Acas has recently issued a guidance document which offers tips to employers and has some useful guidance on preparing a social networking policy.

In summary they should:

• Develop and/or constantly revise and tighten policies and procedures relating to social media developments and electronic communications;
• Update any disciplinary policies and procedures to include social networking;
• Train their staff on their revised policies, in particular setting out the consequences of any reputational damage undertaken both in and outside of the workplace, to ensure that employees are aware that the use of social media outside of work may still have an adverse effect on their employment.
• Apply a consistent approach in dealing with breaches of policies and procedures.

Service of court proceedings by use of social media

Traditionally, court documents are permitted to be served on litigants through conventional means such as personal service, post, fax and email. In what is believed to be a first for a UK court, a District Judge sitting at Hastings County Court earlier this year allowed a claimant to serve a summons on a debtor by way of substituted service via email to the debtor’s Facebook page. Solicitors acting for the claimant were able to show that all conventional methods of service had been exhausted. It was successfully argued before the court that as the debtor frequently visited the site, the summons would come to the debtor’s knowledge and could therefore be deemed served.

Whilst this new method of substituted service makes it much easier for claimants to effect service and more difficult for defendants to evade service by hiding behind the cloak of the internet, service of documents via social media does give rise to numerous concerns. For example, what level of evidence is necessary to satisfy the court that a social network account is being actively used? It is sometimes difficult to show that a particular user is indeed using the social media account and to prove the reasonable probability that the court documents will come to the user’s attention. It is also unknown whether the courts will allow service to a company’s Facebook page as well as to an individual’s.

Philip Pepper is a senior associate in the employment department at Freeth Cartwright. He can be contacted on 0845 271 6794 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..