Liverpool Employment Tribunal finds the dismissal of a pub manager for inappropriate comments made on Facebook to be fair.
The Tribunal accepted that the dismissal of Miss Preece for gross misconduct had been fair in the circumstances. This was the case even though her comments had been made on what she believed to be a private Facebook network, and the fact that she had made the comments in reaction to a “torrent of abuse” received from customers. The Tribunal found the company had passed each stage of the test laid down in the leading case of BHS v Burchell  IRLR 379.
- genuine belief: the company did genuinely believe that Miss Preece had committed an act of gross misconduct;
- reasonable grounds for belief: the company had reasonable grounds to sustain its belief, as it had clear evidence that Miss Preece had entered into a Facebook conversation in which she made abusive comments regarding customers who could be identified by name;
- reasonable and fair investigation: the company had carried out as much of an investigation in to the matter as was reasonable in all the circumstances, and the enquiry and investigation was fair;
- range of reasonable responses: it was not for the Tribunal to substitute what it would have done in the circumstances in place of the action taken by the company. Further, it was irrelevant that this was a case where the Tribunal may have been more inclined to issue a final written warning. The company’s decision to dismiss did fall within the range of reasonable responses an employer might take in the circumstances.
Although this is only an Employment Tribunal (“ET”) decision, and therefore it is not binding on other Tribunals, it is a useful insight in to the deliberations of one Tribunal on the topical issue of social media and its impact on the workplace.
It is encouraging for employers that the Tribunal was ready to accept that the employee’s actions on Facebook were sufficiently proximate to her employment so as to justify dismissal. It is interesting to speculate whether the Tribunal’s decision would have been different if Miss Preece had posted the comments at home rather than at work. On the reasoning it adopted it probably would not have been.
Another point of note is the Tribunal’s emphasis in its decision on the relevant provisions of the company’s Handbook relating to “E-mail, Internet and Intranet”, and its finding that Miss Preece’s had been well aware of the relevant rules prior to the incident. Although the Tribunal did not say so expressly, it seems likely that it would have been less inclined to find the dismissal fair, if there had been uncertainty as to the company’s rules relating to online conduct or Miss Preece had not been made aware of the rules.
Employers should conduct a review of their IT policies to ensure that they are sufficiently up to date to cover misconduct in the ever growing social media environment. Employers should also seek to ensure that they have evidence which shows that employees are aware of the applicable rules, so that they can be confidently relied upon in any subsequent disciplinary procedure.
Miss Preece was employed by J D Wetherspoons as a Shift Manager from 18 May 2009 until 14 June 2010. On 24 May 2010, Miss Preece and a colleague were subjected to what the Tribunal described as a “shocking torrent of verbal abuse and physical threats by a group of people, including customers known as Brian and Sandra”. It was accepted that Miss Preece had dealt with the situation professionally at the time, and that she had diffused the situation correctly by asking the customers to leave.
However, shortly after the incident (and during work time) Miss Preece entered postings on her Facebook page. Several of her Facebook “friends” responded to her initial rant, and a dialogue developed regarding the two customers, Brian and Sandra. In one posting, Miss Preece stated “Sandra and Brian barred, ha ha ha!”. In another, that she hoped Sandra’s “hip breaks”. The Tribunal found that the comments could be viewed by at least 40 to 50 (and possibly up to 646) people. On 7 June 2010 Leslie Roache, the daughter of Brian and Sandra, complained to the company’s customer services department about Miss Preece’s entries on Facebook. The company commenced an investigation into the incident. Miss Preece stated that she understood it was wrong to vent her anger on Facebook, but that she thought her privacy settings meant only her work and school friends could see the postings.
At the disciplinary hearing, Miss Preece conceded that it was unacceptable to make inappropriate comments and that this might bring the company in to disrepute. The manager hearing the case made the decision to dismiss Miss Preece for gross misconduct, having found that she had breached the company’s relevant policies, that her conduct had lowered the company’s reputation, and that this had resulted in a fundamental breakdown of trust and confidence. Miss Preece appealed against the decision but her appeal was not upheld.