Fair dismissal for inappropriate comments made on Facebook

In Preece v JD Wetherspoons plc ET2104806/10 (24 April), an employment tribunal decided that a pub manager had been fairly dismissed for gross misconduct having made inappropriate and offensive comments on Facebook about some of her customers who had been abusive to her and who had been barred as a result. The comments were posted while was was still at work rather than in her spare time, and the Tribunal's reasoning suggests that it might have made a  difference if she had done it from home. She acknowledged that it was in breach of the employer's e-mail and internet policy, but argued that she believed her privacy settings restricted the number of people who could read the comments to 40 or 50. She also raised in mitigation the abuse she had suffered from the customers, who were mentioned by their forenames so her friends knew who they were.

The Tribunal found the company had passed each stage of the test laid down in the leading case of BHS v Burchell [1978] IRLR 379.

• The company genuinely believed that Miss Preece had committed an act of gross misconduct;
• It  had reasonable grounds to sustain its belief, with clear evidence that Miss Preece had entered into a Facebook conversation in which she made abusive comments regarding customers who could be identified by name;
• It had carried out an investigation in to the matter that was reasonable in all the circumstances, and the enquiry and investigation was fair;
• It was not for the Tribunal to substitute what it would have done in the circumstances in place of the action taken by the company. It was not relevant that this was a case where the Tribunal may have been more inclined to issue a final written warning. The Tribunal decided that dismissal was within the range of reasonable responses in view of the damage to the employer’s reputation.

Although this is only an Employment Tribunal decision, and therefore not a binding precedent, employers will be relieved to know that what employees do in social media can be considered sufficiently proximate to their employment to justify action for gross misconduct.

The fact that the employer's email policy was certain and clear, and that the employee had known it, was important here. As in other areas where legal risks have to be dealt with, employers must not only ensure that their staff know the rules (especially when they form part of a voluminous staff handbook or something similar) but that there is evidence to show that they do - that they have been told at an induction session, perhaps, or that there has been training on the topic and the employee signed the attendance sheet.