The manager of a JD Wetherspoons pub claimed unfair dismissal following her sacking for breach of the company’s Internet Policy. She made comments about customers on Facebook, wrongly thinking her privacy settings only allowed friends and family to see them. Jenny Wotherspoon and Chris Stack report the verdict.
Topic: Unfair Dismissal and Freedom of Expression
Case: Miss K C Preece v J D Wetherspoons Plc
Law stated as at: 1 June 2011
Social media is becoming an ever more popular way for people to express their views and socially interact. Websites such as Facebook and Twitter provide employees with a largely unfettered and unmonitored ability to post comments or "blog".
However, as the case of Miss K C Preece v J D Wetherspoons Plc demonstrates, if employees overstep the mark then they could face a disciplinary sanction as serious as dismissal for gross misconduct.
The Claimant in this case, Miss Preece, was a shift manager at a J D Wetherspoons pub. During the course of her employment she had been provided with, amongst other things, an Employee Handbook (the "Handbook"), which contained a non-contractual disciplinary and dismissal procedure, and an Email and Internet Policy (the "Email Policy").
In summary, the Handbook provided a list of actions which might amount to gross misconduct, including "acts committed outside work… which amounts to a serious breach of trust, which affects employee or customer relations or which brings the company name in to disrepute… any conduct resulting in a fundamental breakdown of trust and confidence… failure to comply with the e-mail, internet and intranet policy." The Email Policy made explicit reference to blogging and reserved the company's right to take disciplinary action against an employee should the content of any blog "be found to lower the reputation of the organisation, staff or customers…".
During May 2010, whilst at work, Miss Preece was subjected to what the Employment Tribunal described as "a shocking torrent of verbal abuse and physical threats" by a group of customers. By all accounts Miss Preece dealt with the incident professionally and correctly; the offenders were asked to leave the pub and subsequently barred. Later the same evening Miss Preece received a number of threatening phone calls from an individual alleged to be related to the individuals involved.
Although she had dealt with a challenging situation in a professional manner, from 6.30 p.m. onwards, and whilst still at work, Miss Preece used her mobile phone to vent her views on Facebook. She believed that her privacy settings meant that she was only communicating with 40 to 50 of her close friends rather than in excess of 600. In the conversation that ensued between Miss Preece and some of her friends and colleagues she made reference, amongst other comments, to the individuals involved by name.
As a result of Miss Preece's comments a complaint was made to J D Wetherspoons' customer relations department about what were stated to be offensive comments made by Miss Preece. JD Wetherspoons carried out a thorough investigation into the complaint, including an investigatory interview with Miss Preece and a colleague who had also been involved in the incident. The company followed a clear process which included writing to Miss Preece to set out the allegations against her and conducting a disciplinary hearing at which all of the evidence was considered, including the mitigating circumstances such as Miss Preece's anger and upset at the incident and the fact that she believed that Facebook privacy settings would limit the distribution of her comments.
After considering all the evidence, the JD Wetherspoons concluded that Miss Preece's actions amounted to gross misconduct on the basis that they had lowered the reputation of the company and resulted in a fundamental breakdown of trust and confidence between Miss Preece and her employer. Miss Preece appealed against the decision to dismiss her, but after the appeal hearing the original decision was upheld.
The Legal Position
Qualifying employees have the right not to be unfairly dismissed. Therefore, an employer must show that it has a potentially fair reason for dismissal and that it has followed a fair procedure. In this case, JD Wetherspoons were seeking to rely on Miss Preece's conduct as the potentially fair reason for dismissal and the Employment Tribunal had to objectively assess whether the employer had acted reasonably in taking the decision to dismiss.
The Employment Tribunal also had to consider whether J D Wetherspoons had infringed Miss Preece's right to freedom of expression under Article 10 of the European Convention on Human rights by dismissing her for the comments she made on Facebook. Under the Human Rights Act 1998 the Employment Tribunal has a duty to interpret legislation in a way which is consistent with the Convention.
The Employment Tribunal's Decision
The Employment Tribunal found that Miss Preece had been fairly dismissed by JD Wetherspoons on the following basis:
- JD Wetherspoons had carried out a reasonable and fair investigation into the matter and had a genuine belief that Miss Preece had committed an act of gross misconduct.
- Miss Preece had made her Facebook comments whilst at work and had made inappropriate comments about identifiable customers.
- J D Wetherspoons' Email Policy was clear and unambiguous and Miss Preece was in breach of its policies and procedures
- Whilst Miss Preece had a right to freedom of expression, J D Wetherspoons' action was justified because of the risk of damage to its reputation.
- Miss Preece was offered the correct level of care and support against verbal abuse and physical threats. She could have made use of a "hotline" to speak with an experienced manager or requested permission to leave work before the end of her shift, but declined to do so.
Actions for Employers
Miss K C Preece v J D Wetherspoons Plc demonstrates and highlights the importance for employers of having comprehensive disciplinary and social media policies in place. The proliferation of "blogging" and the use of social media mean that workplace disputes and issues are more likely to enter the public forum and employers can address this through robust policies and procedures which they should get employees to sign up to. Employers should be clear that an employee's failure to comply with the company's policies may result in disciplinary action.
Email/internet and social media policies should include a requirement that employees will not:
(a) Divulge confidential information relating to their employer;
(b) Post content which is potentially damaging to their employers reputation;
(c) Make statements which could be discriminatory or defamatory; or
(d) Engage in cyber bullying.
Employers should also make staff aware in their email/internet policy that they have the right to monitor internet and email use and employees should be asked to sign a statement to confirm that they consent to this.