In Plant v. API Microelectronics Ltd, the Employment Tribunal (ET) has held that the dismissal of a long-serving employee was fair, after she had made derogatory comments over social media about her employer. This decision was reached on the basis that Mrs Plant "was aware of" the company's social media policy and so her dismissal was within the band of reasonable responses open to the employer.
Mrs Plant had been employed for 17 years with a clean disciplinary record. The employer had introduced a social media policy, which provided a non-exhaustive list of unacceptable social media activity, including publishing comments that could damage the reputation of the company. The policy also reminded employees that conversations between friends on Facebook can be copied and forwarded on to others without permission, meaning that conversations on Facebook are not truly private. The policy provided that breaches could lead to disciplinary action and that serious breaches would be regarded as gross misconduct, leading to dismissal.
Following the company's announcement of a possible move of premises, the employer was made aware that Mrs Plant had posted inappropriate comments on Facebook. Mrs Plant's Facebook profile, on which she had posted her job title description as "general dogsbody", was in fact linked to API Technology and she posted a further comment following API's announcement about a possible move of premises: "PMSL [pissing myself laughing] bloody place I need to hurry up and sue them PMSL". Following an investigation, API called Mrs Plant in for a disciplinary hearing.
At the hearing, Mrs Plant did not dispute that the comments were aimed at API, stating instead that she had not realised that her Facebook profile was linked to the employer. Mrs Plant was dismissed for a breach of policy, based on the offensive nature of her comments.
Mrs Plant's dismissal was found to be fair by the ET. She admitted that she was aware of the social media policy and what it entailed. In addition, she admitted that she had made the insulting comments that resulted in a breakdown in trust with API.
Although the decision may be seen as harsh when dealing with a long-serving employee with a clean record, the ET concluded that the employer had reasonable grounds for dismissal, after an investigation and disciplinary hearing. It will be interesting to see whether Ms Plant appeals the decision.
What is the practical impact of this for employers?
The case demonstrates the importance of ensuring employers put in place clear social media policies which set out the employer's position, guidance and sanctions for breach. Employers should ensure that employees fully understand the policy by offering social media training or by ensuring wide circulation, whereby employees are required to confirm that they have read and understood the policy.
A strongly drafted social media policy can aid in mitigating risk for the employer and employee and it can provide clarity around the values and culture of an organisation, setting expectations and guidelines for communication and responsibility in the workplace.
Tribunals will take into account many factors in assessing whether a social media-related dismissal is fair. Such factors include:
- the nature and severity of the comments made by an employee;
- the subject matter of those comments;
- the extent of the damage caused to an employer's reputation;
- whether there has been a breach of confidentiality;
- whether the employer has a social media policy and whether employees have been given training in that policy;
- whether the comments made by an employee were made during working hours and/or using the employer’s equipment; and
- whether there are any other mitigating factors.
Employers need to be aware that any decision to dismiss an employee for alleged social media misconduct should be based on a fair and unbiased consideration and assessment of these factors, in order to minimise the chances of being found guilty of an unfair dismissal.