"Will the highways on the internet become more few?"
It was twelve years ago last month when George W. Bush asked this very pertinent (if somewhat confusingly phrased) question. In that twelve year period, rather than becoming "more few", the highways on the internet have expanded considerably. While once employees had only email to amuse themselves, they now have an incredible array of electronic modes of communication, including blogs, Facebook, LinkedIn and Twitter. Unfortunately, the expansion in the use of the internet as a means of communication has also led to increased misuse by employees. In this respect, the recent decision of the Employment Appeals Tribunal in the case of Aoife O'Mahony v PJF Insurances Limited (UD 933/2010) is very interesting.
In that case, the Tribunal found that the posting of electronic messages on Ms O'Mahony's Facebook page, which were disparaging and personally offensive towards a director of her employer (PJF Insurances), amounted to a breach of trust of such significance as to render untenable her employment.
PJF Insurances was a small operation consisting of two directors, who were husband and wife, and three clerical assistants (including the claimant, Ms O'Mahony). In January 2010, O'Mahony was spoken to by the two directors in relation to her interaction with clients and was asked to "tone it down" in front of the public. According to the directors, this meeting was not a disciplinary meeting, but was one held in "the ordinary course of the management of the business".
A week later, one of the directors accidentally came across O'Mahony's Facebook page, which was open on a computer screen in the office. The director was "shocked" to discover that both herself and the company were described in disparaging terms. She summoned O'Mahony to a disciplinary meeting, confronted her with the material from the Facebook page and requested that she open her Facebook page so that the director could view the rest of the material on that page. On further viewing, the director found many "extremely disparaging" electronic messages, some of which contained expletives and one of which referred to her as a "bitch". O'Mahony was dismissed for gross misconduct.
O'Mahony acknowledged that she had used regrettable words in emails during the course of her communications with persons outside of the business. She accepted that the emails were disparaging of her employer and inappropriate. She said that she was frightened of the director in question and was unhappy in her job and had been very upset by what was said to her at the initial meeting. This was what had motivated her to write the emails. However, she had apologised for her actions. In the circumstances, the Tribunal found that the employer had acted reasonably in the manner in which it had dealt with the matter and found that the dismissal was fair.
It is interesting to compare this case to a similar case of Emma Kiernan v Awear (UD643/2007). In that case, a customer of Awear contacted a member of staff and drew her attention to comments posted on the social networking site, Bebo. Awear had an official presence on the Bebo site and the branch where Ms Kiernan worked had a separate, but linked, connection to that official site. That link was established by employees at that branch and operated independent of Awear, but was accessible to the public.
During a disciplinary investigation, Kiernan confirmed that she had written the comments (which referred to her manager in very derogatory terms). However, the comments did not name Awear directly, nor the manager in question. It also emerged at the Tribunal hearing that the manager referred to by Kiernan was not aware of the disciplinary process conducted against Kiernan and had never made a formal complaint herself. Kiernan apologized for the comments, said that she was having a bad day and was reacting to what she deemed to be a false accusation by the manager concerned.
In the Awear case, the Tribunal unanimously found that Awear had acted disproportionately in dismissing Kiernan on grounds of gross misconduct. While Kiernan's comments deserved strong censure and possible disciplinary action, the Tribunal found that they did not constitute gross misconduct in the circumstances. However, the award in the circumstances was limited to €4,000, with the Tribunal finding that Kiernan had contributed significantly towards her own dismissal.
With the continued development of social networks, and other means of electronic communication, it is inevitable that such means of communication will, at times, be used inappropriately by employees. When dealing with cases of alleged inappropriate use, an employer should ensure that any reaction to online communications is reasonable and proportionate in the circumstances.
The employer will need to consider whether the employer, or any fellow employee, is identified in the online communications, whether those communications have caused reputational damage to the employer, or any fellow employees. The employer should also consider whether the communications have caused damage the employee's relationship with the employer, or with his or her fellow employees.
While the employee communications in both the PJF Insurances case and the Awear case were inappropriate and disparaging, in the PJF Insurances case there was clear reputational damage to the director concerned, while in the Awear case reputational damage was not so clear.