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Social Media and Unfair Dismissal: Bad News for Employees

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About The Author

Chris Bridges (Executive Editor)

Chris is an IT and Data Protection solicitor at a top 20 full service firm and the founder of Keep Calm Talk Law. He also contributes to Computers and Law and other sector specific publications.

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The issues surrounding the use of social media and employment relationships struck a little close to home in recent months. Legal Cheek reported on a video posted on YouTube by a Clifford Chance trainee, which carried what many viewed as jihadist messages.

Fortunately, for the trainee in question, it appears that Clifford Chance decided to take no disciplinary action, despite the media storm and bad press that it created.

However, the episode raised important questions about where employers stand when it comes to the social media profiles of their employees. You only have to look to the comment sections of Legal Cheek’s various articles on the matter to see a diverse range of opinion.

The argument essentially boils down to two opposing assertions:

  1. Employers should have the right to exert some control over their employees’ online presence through the threat of dismissal for misconduct.
  2. Employees should have an uncurbed right to freedom of speech, no matter what repercussions it might have on their employer’s reputation.

Whichever you believe to be correct, ultimately, the most important and practical thing to consider is where the law stands on dismissal due to alleged misconduct through the medium of social media.

My inquisitive mind was left wondering, if Clifford Chance had pursued the matter further, would they have been regarded as acting fairly in dismissing the trainee?

Personally, I found the video inflammatory, but I would not go as far as threatening. Others will have a different opinion, and I invite you to watch at least excerpts of the video so you can come to your own decision.

The remainder of this article seeks to come to a theoretical decision on whether such a dismissal would be fair, although the law and commentary is relevant regardless of whether your interest lies in this particular case or not.

The Law

If you are on Twitter, and are a lawyer or wannabe-lawyer, you will undoubtedly know how many of those in the same demographic include ‘disclaimers’ on their profiles. Sadly, in the majority of cases, this is not going to stop an employer taking offense, or even worse, action. Whoever would have thought?

The law surrounding dismissal and social media invariably comes from case law. The facts of the cases typically follow a pattern:

  1. Employee posts something on social media that employer does not like;
  2. Said post receives press coverage or is reported to management by a colleague;
  3. Employer dismisses employee for breach of contract, usually with reference to a vague provision in an Employment Handbook, Disciplinary Policy or Social Media Policy;
  4. Employee brings claim against employer for Wrongful and/or Unfair Dismissal.

This produces a rather unpredictable state of affairs, with each case turning on the facts of that particular case. The answer is not ‘one-size-fits-all’ for employer or employee; neither particularly know where they stand on what they can or cannot do until the Tribunal Judge or Appeal Judge hands down judgment.

Luckily for us, there has been a very recent case, with judgment handed down in November 2014, which arguably breaks new ground, and demonstrates a sympathy for employers.

Game Retail Ltd. v Laws

Judgment: [2014] UKEAT 0188_14_0311

This case, heard before the Employment Appeal Tribunal, is allegedly the first on the misuse of Twitter in the context of unfair dismissal, and demonstrates that it is certainly not difficult for employers to defend claims for unfair dismissal following posts on social media.

The claimant in this case had a relatively significant role in the popular high street chain, GAME, with responsibility for over c.100 stores. Rather ironically, he had set up his Twitter profile to monitor abusive use of Twitter by employees.

He was dismissed on the following ground, following the appropriate internal procedure:

Between July 2012 and July 2013 you posted a significant number of offensive, threatening and obscene Tweets on your Twitter account, which were in the public domain and therefore able to be viewed by anyone on Twitter, including Game employees in stores that follow you or that you follow.

The covering letter to the invitation to the disciplinary hearing also stated:

Whilst this is your personal Twitter account and you do not specifically affiliate yourself to the company on that account, you also use your account to monitor Twitter activity from the company’s stores that you are responsible for in your capacity as risk officer.

The tweets in question were by-and-large associated with football, following a Newcastle/Sunderland Derby match. The worst tweet was noted as:

Some ppl are just vile c**ts I wouldn’t piss on you if you were on fire but would love to rip ur head off and shit down ur neck #cunts.

Charming, I know; at least censor the hashtag too!

Other tweets included derogatory comments about the police, A&E, dentists, ‘caravaners’ and golfers; is there anyone this man did like?

Whilst these tweets were in themselves rather vile, the only link between them and his employer was that he was followed by 65 local stores, which each had individual Twitter profiles. None of the tweets in question were targeted at or directly associated with his employer, nor was it established that any of the stores customers followed the claimant, and would therefore have seen these tweets.

The first instance Employment Tribunal judge decided that the sanction of dismissal was not a reasonable response, given the tweets were in a personal capacity. Although the judge conceded there had been some misconduct, it was not a dismissal offense.

Tangent: The Reasonable Response Test

Whether in all the circumstances of the case the nature of [the employee’s] shortcomings were such that a reasonable employer carrying on the company's business would have regarded the dismissal as being a reasonable response and whether, in the circumstances of the case, the dismissal was carried out in a fair way.

For the finer details of this test, see Iceland Frozen Foods Ltd v Jones [1982].

The Appeal

The Employment Appeal Tribunal reversed this decision on the grounds that the first instance judge had substituted his judgment for that of the employer. The case has therefore been remitted to a new Employment Tribunal.

Whilst this appears at first to be useless for our purposes, the Appeal Tribunal did give some interesting commentary.

First, the tribunal implied that Twitter is inherently public unless the user has restricted their profile. Therefore, it was immaterial that the tweets were in a private capacity and customers were unlikely to see the tweets.

Second, the judgment also stated that there was an implied link between GAME and the claimant, simply through local stores having followed him (which was considered an implicit endorsement). Those that use Twitter may find this rather surprising; there is little in a ‘follow’, certainly not enough to be considered an endorsement.

This opens one’s eyes to the fact that employment tribunals can be relatively sympathetic to an employer’s reasoning for dismissal, even when there is very little to link the posts with the employer.

The Appeal Tribunal believed it would be improper to provide general guidance on social media related unfair dismissal claims, believing that the proper test remained the ‘reasonable response test’ set out Iceland Frozen Foods Ltd. v Jones. Their reasoning was well summarised as follows:

That test is sufficiently flexible to permit of its application in contexts that cannot have been envisaged when it was laid down.  The questions that arise will always be fact-sensitive and that is true in social-media cases as much as others.  For us to lay down a list of criteria by way of guidance runs the risk of encouraging a tick-box mentality that is inappropriate in unfair-dismissal cases.

This, I think is fair. There is no one-size-fits-all approach; it is up to individual organisations to determine how sensitive they are to the use of social media. Therefore, on this basis, the right place for rules to be set is in each particular employer’s disciplinary policy, social media policy, or other internal media. This was again eloquently put by the Appeal Tribunal:

Generally speaking, employees must have the right to express themselves, providing it does not infringe on their employment and/or is outside the work context.  That said, we recognise that those questions might themselves depend on the particular employment or work in question.

Strangely, however, this comment was made with reference to a previous case concerning allegedly homophobic comments on Facebook, where a very different approach was taken.

Enter Smith v Trafford Housing Trust [2012].

Smith v Trafford Housing Trust

It should first be noted that this case was not in the context of dismissal, but rather demotion following a number of comments on social media against gay marriage, labelled by the claimant ‘an equality too far’. This was on the grounds that the employee code stated:

The Trust is a non-political, non-denominational organisation and employees should not attempt to promote their political or religious views.

The claimant had 201 friends on Facebook, and his privacy was set to ‘Friends of Friends’. On the basis that the mean average number of friends is 338, this equated to a potential audience of 67,938, which is unquestionably large. Forty-five of these friends were also work colleagues. Further, on his Facebook profile, he listed himself as a Housing Manager for the defendant.

Despite all this, the court found that his Facebook profile did not have sufficient ‘work-related context’ to justify the demotion:

His Facebook (often described as a social medium) was an aspect of his social life outside work, no less than a pub, a club, a sports ground or any other physical (or virtual) place where individuals meet and converse…

Secondly, although Mr Smith's Facebook wall was not purely private… it was not in any sense a medium by which Mr Smith could or did thrust his views upon his work colleagues… His Facebook wall was primarily a virtual meeting place at which those who knew of him, whether his work colleagues or not, could at their own choice attend to find out what he had to say about a diverse range of non-work related subjects. Even to the extent that his Facebook wall was accessible to friends of friends, actual access would still depend upon the persons in that wider circle taking the trouble to access it.

(Emphasis added)

All of these things could equally be said of the Game Retail case, in which, remember, the only link found between the claimant’s Twitter profile and his employer was that it was followed by Game stores (run by the claimant’s colleagues). This raises questions on how these two cases can be reconciled.

I see three factors that potentially justify the divergence of opinion:

  1. In this case, the comments were clearly on religious grounds. Whilst this is no excuse, it is arguably more justifiable (although, in my opinion, not actually justifiable) than sporadic abuse, as in the Game Retail case;
  2. This was just one incident. In the Game Retail case, the employer referred to numerous inflammatory remarks; and
  3. The respective employers’ social media and disciplinary policies are not available to us. Game Retail may have had a clearer policy on the use of social media, hence making the employer’s response fair.

On the other hand, this may well just be a changing of attitudes as social media becomes more and more influential in daily life, even in the short period of two years or so between these judgments.

I would therefore be inclined to suggest that Game Retail is more likely to be followed in the future; social media is constantly becoming more influential in everyday life, which is, I suggest, encouraging the judiciary to be more sympathetic to disgruntled employers where the circumstances demand.

The Case of the Clifford Chance Trainee

There was, as far as I am aware, nothing to link the trainee’s YouTube profile to Clifford Chance. However, he must have been recognised by someone as a Clifford Chance employee, otherwise Legal Cheek would not have received the tip-off. This also implies that the trainee most likely shared the video via other social media.

This begs the question: is it simply enough that content appears in the public domain, without any impingement on access?

This was a proposition Game Retail Ltd. put in the above case, which was not expressly agreed or disagreed with by the Appeal Tribunal. Game submitted that Twitter is inherently public unless the profile has been restricted by the user.

Without wanting to put words into the mouth of the court, I think if they had had to, they would have agreed with this.

A parallel can easily be drawn with YouTube; the video was public, not private (as is also possible on YouTube). The video was therefore inherently public. Further, it is assumed the video must have been shared on social media, which was followed by colleagues; else, it would not have been found.

It is impossible to come to a definitive answer without addressing Clifford Chance’s internal guidelines. However, it is typical for the following to appear in such guidelines as examples of gross misconduct, whether verbatim or otherwise, each of which the video in question could plausibly have fallen under:

Actual or threatened violence, or behaviour which provokes violence;

Harassment of, or discrimination against, employees, contractors, clients or members of the public, related to gender, marital or civil partner status, gender reassignment, race, colour, nationality, ethnic or national origin, disability, religion or belief or age;

Unlawful discrimination or harassment; and

Bringing the organisation into serious disrepute.

I therefore suggest that, had Clifford Chance taken the matter further, they would have stood a relatively good chance of the dismissal being seen fair and reasonable. However, as is always the case with unfair dismissal it would depend on the finer details of the case, which are not available to us.

Is This Enough?

I agree with the Employment Appeal Tribunal’s statement in Game Retail that the ‘reasonable response test’ is still the correct approach, despite being incepted prior to the internet.

However, this test requires proper attention be paid to all of the facts and circumstances.

Therefore, for the sake of clarity for both the employer and employee as to where they stand with social media, I believe that every organisation entering into employment relationships should have clear guidelines on what use of social media risks falling foul of disciplinary proceedings, including dismissal.

Such guidelines should ideally be documented as well as presented formally in induction training, and should include a breakdown of the policy on each social medium, for instance:

The employee shall not post anything on Facebook that would breach the employee code of conduct where that employee is connected, whether directly or indirectly with a colleague, regardless of his or her privacy settings.

The employee shall not post anything on any openly accessible website or social network that would breach the employee conduct of conduct.

Such guidelines would make the situation crystal clear for both the employer and employee; there would then be no excuses. Breach this, and risk disciplinary.

Therefore, I believe that employees should prima facie have a right to use social media as they wish. Should employers wish to curb this, they can, but they must do so expressly if they wish to enforce it.

That said, I think there are limits on what an employer can reasonably demand. Sadly, employers are in a strong bargaining position. We have regulations to protect employees for this reason, and it would perhaps be wise to regulate how far employers can go in restricting their employees’ freedom of speech. However, there is an entirely distinct discussion to be had in that respect; in summary, reasonableness would ultimately have to depend on, among other things: the reach of the employee’s social network (particularly with regards to clients and/or colleagues), the organisation, its standing, the seniority of the employee and whether the employee is public facing.

Regardless of whether such legislation ever comes to be, one thing is clear. Greater clarity is needed across the board; it is the employer’s responsibility to make their policy on social media known. If this has been done, there should be little doubt as to the court’s view on any alleged unfair dismissal; the sympathy will lie with the employer.

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Tagged: Commercial Law, Employment Law, Human Rights

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