The East Midlands Employment Tribunal has found that an employee of a pub in Lincolnshire was unfairly dismissed for liking a social media post that criticised her ‘creepy and wildly inappropriate’ boss. It sparked debate between how far employers can legally monitor their employees’ social media presence. On one hand, it could be necessary to maintain the employer’s reputation from a disgruntled staff member. On the other, employers need to tread carefully as monitoring social media is not always risk free.

Background

Damaris Trench was employed at Trebles bar in Lincoln in 2018. There were no grievance, disciplinary, harassment/equality or social media policies in place at the time of her employment.

The owner of Trebles, Mr Himesh Patel, ran the establishment but also socialised and drank in the bar and left the management to various other staff members.

Miss Trench’s partner, Dan Sargeant, also worked for Trebles. After resigning with immediate effect in October 2020 after allegations of drinking alcohol during his shift, he returned home and wrote a disgruntled Facebook post about Mr Patel.

Included within this post were allegations that Mr Patel was a ‘creepy and wildly inappropriate man’ who ‘allowed under-aged drinking’ and ‘did not provide his employees with breaks’. Mr Sargeant also accused Mr Patel of failing to follow appropriate COVID-19 guidelines, quoting that Trebles bar was an unsafe working environment for both staff and customers alike.

Agreeing with her partner, Miss Trench went on to share the post on both her Facebook and Snapchat platforms. She argued, during the Tribunal hearing, that she did so as she supported allegations made about Mr Patel, rather than allegations about the bar. She did accept that the post reflected badly on Trebles and as such, she deleted the posts soon after reposting.

Miss Trench was suspended following this behaviour and whilst off work, she lodged a formal complaint about Mr Patel. In the event, no investigation was carried out into Miss Trench’s complaint and she was subsequently dismissed for gross misconduct at the end of October 2020.

The Tribunal unanimously agreed that the Claimant had been unfairly dismissed, that there should be no reduction from any compensation awarded to the Claimant under the Polkey principles and that the Claimant did not contribute to her dismissal.

Miss Trench argued that the decision to dismiss her for liking and sharing the Facebook post without a policy prohibiting her from doing so could not be justified. The Tribunal noted that the employer employs almost exclusively staff of the Claimant’s generation who were more used to social media, and that it did not tell staff what they could and could not post on social media. It was referenced her removing the post promptly and her regret.

Summary

This claim highlights the difficulty that employers are faced with when employees are either posting or condoning comments that could potentially damage an employer’s reputation. Issues with employee social media comments are a regular problem for employers and it can be tempting for employers to monitor their employees on social media. There are many justifiable reasons in doing so, which include safeguarding employees against online bullying, ensuring compliance with post-termination restrictive covenants, ensuring that client and business information remains confidential and monitoring employee productivity and performance.

This case serves an important reminder that employers should use precaution when reviewing and possibly monitoring their employees’ social media pages. They should also ensure that their internal policies and procedures are up to date in the event they need to proceed with a disciplinary procedure. Having a social media policy in place specifically could minimise the risk of ambiguity in what is and is not acceptable in (and out) of the workplace, and to what extent it’s fair for employers to monitor social media pages of their staff.

Previous cases have set out that it will be fairer for employers to discipline employees in these situations where:

• There is a clear and widely communicated policy on social media
• There is a link to the employer
• There is a wide audience or poor security on the social media page
• The posting or material is about the company/staff personally
• The material was inappropriate/offensive
• Using company computers, time or facilities
• Other employees were disciplined in similar circumstances

It will always be harder to take action where there is no social media policy. If you have any questions on having a social media policy please get in touch.

For further information or to discuss the issues raised by this update, please contact our Employment Group on 01276 854663 or employment@herrington-carmichael.com.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.