The Employment Tribunal found that the lack of a social media policy meant that a related dismissal was unfair.
In the case of Trench v Performance Bar Limited, the claimant had worked at the respondent’s bar from November 2018 until November 2020. Her partner also worked at the same bar but, following an altercation, resigned with immediate effect in October 2020. Shortly after, her partner published a lengthy Facebook post which was critical of both the bar and its owner.
Included in the Facebook post were comments referring to how ‘creepy’ the manager was and his ‘wildly inappropriate behaviour,’ such as sexual harassment and allowing underage drinking. The post, which was liked, commented on and shared by the claimant, further accused the manager of having no interest in staff wellbeing, saying he didn’t provide rest breaks or follow Covid safety procedures.
Despite deleting the post and apologising for her actions, the claimant was dismissed for gross misconduct six days later due to the post being ‘detrimental to the business’. However, a limited investigation was conducted, and a proper process not followed. As such, the employee went on to raise claims for unfair dismissal and automatically unfair dismissal.
The claims were successful. The employment tribunal (ET) found that the employer had no social media or disciplinary policy warning employees that this behaviour would be treated as a disciplinary issue. Similarly, the dismissal fell outside the range of reasonable responses since no reasonable investigation was followed. The further lack of process (e.g. no written invite to investigation and disciplinary meeting, and no offer of right to appeal, etc) rendered the dismissal procedurally unfair.
It concluded that the employee deleted her comments and hadn’t acted to deliberately damage the bar’s interests. As such, the ET stated no reasonable employer would have dismissed in these circumstances, so upheld the claim for unfair dismissal.
The ET then turned to the question of automatic unfair dismissal and whether or not a ‘protected disclosure’ had been made. On the basis that the post contained factual information of the respondent’s failure to comply with legal obligations, and that the claimant reasonably believed the allegations at the time, this was sufficient to make the act of liking and sharing the Facebook post a protected disclosure. That being said, the ET dismissed the claim of automatic unfair dismissal and victimisation by finding that the reason for the dismissal was publicly sharing a post that was critical of the respondent, and however right or wrong that decision was, it did not make the dismissal automatically unfair.
The case highlights the importance of having robust policies and procedures in place. Doing so ensures all parties are clear of the possible consequences of breaching clearly set company policy. It also helps make sure employers are consistent in how they manage situations, such as disciplinary issues, and treat staff. Combined, this safeguards the organisation from tribunal claims, as there are identifiable standards and expectations which all employees are aware of and must follow.
Kate Palmer, HR Advice and Consultancy, commented “This case highlights the limits placed on employers if they don’t have a policy in place before they want to take specific action. The fundamental message from this case is that, generally, employees have to know in advance that what they are doing will be classed as misconduct”.
