Employment Law Cases

Plant v API Microelectronics Ltd

The dismissal of a long-serving employee following derogatory comments about her employer on Facebook was fair.

Mrs Plant was an employee with an exemplary disciplinary record who’d worked for API for 17 years. API had a social media policy which contained a non-exhaustive list of unacceptable social media activity, among which was posting comments which could damage the company’s reputation. The policy also highlighted that conversations between friends on Facebook can be copied and forwarded on to others without permission, meaning that such conversations are not truly private. As is common, the policy provided that breaches could lead to disciplinary action and that serious breaches would be regarded as gross misconduct, leading to dismissal.

Following news of a possible office relocation, Mrs Plant posted the following comment on her Facebook page (which was linked to her employer’s computer system): ‘PMSL [pissing myself laughing] bloody place I need to hurry up and sue them PMSL’. At the subsequent disciplinary hearing, her defence was that she didn’t realise her Facebook page was linked to API’s technology and that the comment wasn’t aimed at the company. API decided to dismiss her and this was upheld on appeal. She claimed unfair dismissal.

Dismissing her complaint, the tribunal noted that Mrs Plant accepted that her comment was in breach of API’s social media policy. She had not reviewed her Facebook profile when the policy was introduced, and there was nothing to stop family and friends from forwarding her comment on to a wider audience. The tribunal therefore accepted that API had reasonable grounds for believing that she had committed misconduct, after a reasonable investigation. Mrs Plant had been given the opportunity to provide an adequate explanation, but had failed to do so.

Link to judgment: http://www.bailii.org/uk/cases/UKET/2017/3401454_2016.html

Comment

The dismissal of such a long-serving employee might be seen as harsh; indeed the tribunal acknowledged as much in its decision. However, it does illustrate the benefits of having a well drafted and clearly communicated social media policy.

The tribunal here said that employees ‘must have been aware’ of the policy and what was and was not allowed. A belt and braces approach would be to run regular refresher courses on your social media policy and get staff to confirm, in writing, that they’ve read and understand the policy.

Whether a disciplinary sanction is warranted in any particular social media misconduct case, and the nature of the sanction will always be fact-sensitive. Some of the following factors may be taken into account:

• What the employer’s policy says (in Walters v Asda ET 2312748/08, the employer categorised social media comments as ‘misconduct’ and not ‘gross misconduct’ and so dismissal for gross misconduct was unfair when an employee said that she would like to hit customers on the back of the head with a pick axe)
• the nature of the posting and evidence that people are likely to be offended (in Tasler v B&Q ET/1200504/2012, an employee dismissed summarily for gross misconduct having posted ‘place of work is a f****** joke’ and that he would soon be ‘doing some busting’ was found to be unfairly dismissed because there was no evidence of damage to the company, although his compensation was reduced by 50% particularly as he showed no remorse)
• whether the employee’s comments or conduct directly reference the workplace
• if the employee’s comments or conduct do not directly reference the workplace, the extent to which the workplace may nonetheless be ‘implicated’ by the posting. Tribunals will generally be suspicious of any employer who simply assumes that this will automatically be the case
• how responsible the employee is for the posting, i.e. did the employee post it himself or herself, or did someone else post it and ‘tag’ the employee?
• how many people have viewed the posting or are likely to view it (in other words, how ‘public’ the posting is)
• the individual’s role within the employer’s organisation, including how senior he or she is
• whether the posting has any impact or is likely to have an impact on the individual’s ability to perform his or her particular role (or the perception of third parties, such as customers or the public at large)
• whether any actual damage has occurred to the employer or is likely to – if so, what? If the employer is relying upon ‘reputational’ damage, what evidence is there of this having occurred? The evidence should be more than just distaste or disapproval for what has been said: a customer or client complaint is good evidence
• whether the employer will become liable to any third parties for the content of the posting (which may occur if, for example, the posting breaches a confidentiality requirement, is defamatory, or constitutes harassment of another employee)
• whether the posting can be ‘undone’, removed by the employee, or otherwise effectively remedied