What can an employer do if it discovers an employee’s inappropriate conduct through their social networking website pages and how should employers treat such evidence? Naomi Flynn reports on recommended practice from an employment perspective where social networking websites are concerned.
Topic: Dismissal procedures
Who: Gill vs. SAS Ground Services
Where: UK Employment Tribunal
Law stated as at: 1 August 2011
The use of social networking websites is a hot topic in today's digital age, both from a business and social perspective. In this article we consider what an employer can do if it discovers an employee's inappropriate conduct from their use of such websites. We take a look at a case that came to light in 2009 which concerned an employee who was dismissed on the grounds of gross misconduct based on evidence obtained from the social networking sites Facebook and Youtube and the findings of the Employment Tribunal.
The claimant in the case of Gill vs SAS Group Services, Mrs Gill, was employed by SAS Ground Services ("SAS") as a customer services representative. Mrs Gill was signed off sick from 11 July 2009 until 19 September 2009. Mrs Gill's communications with SAS regarding her absence and return to work were changeable and unclear.
Mrs Gill was due to return to work on 19 September 2009. Around this time one of her colleagues produced an entry from Mrs Gill's Facebook page, which showed that Mrs Gill had attended London Fashion Week (15th-19th September) during the period she was signed off sick. SAS investigated the matter and began disciplinary proceedings against Mrs Gill. Mrs Gill claimed that she had been helping out at London Fashion Week for a couple of hours on a social basis. However the entries she had made on her Facebook page indicated that she was in fact responsible for "auditioning 300 models" and choreographing a fashion show. It subsequently came to light that she had also been filming in India during a previous period of unauthorised absence.
SAS came to the conclusion that Mrs Gill had carried out work elsewhere during her leave of sickness absence and dismissed her for gross misconduct. Mrs Gill did not appeal against the decision. Mrs Gill subsequently brought a claim in the Employment Tribunal for unfair dismissal.
The Employment Tribunal found that the dismissal was fair and dismissed Mrs Gill's claim. In particular the Tribunal found that the evidence SAS had relied on from Mrs Gill's Facebook and Youtube pages was sufficient to entitle SAS to reach the decision to dismiss Mrs Gill based on her conduct.
Why this matters:
A recent survey estimated that the ever increasing non-business use of social networking sites such as Facebook, Youtube and Twitter is costing UK businesses up to £1.38 billion each year. It is therefore expected that employers will be faced more and more with this type of issue. Whilst this case was conducted at Employment Tribunal level only (and therefore is not binding on other Employment Tribunals), it is useful for employers to cite when faced with potential breaches of contract by their employees which are evidenced on an employee's social networking pages.
In the present case, it is helpful to note that in addition to the direct effect Mrs Gill's leave of absence was having upon her own work performance, SAS was able to demonstrate how her activities as published on the social networking sites were also affecting the work performance of her colleagues. SAS successfully argued that other SAS employees were demoralised by becoming aware of Mrs Gill working at London Fashion Week and filming in India via Facebook and Youtube during her paid leave of sickness absence.
Points employers can therefore take away from this case and the use of social networking sites generally are as follows:
- It appears that employers may now use relevant evidence obtained from social networking sites if the evidence comes to light as part of a disciplinary process. However employers should be wary of how and when this evidence is used. If the employer is found to be trawling through social networking sites to find evidence of fraudulent behaviour, this could result in the employee taking action for a breach of the Data Protection Act 1998.
- Employers should treat such evidence with the diligence and caution that would otherwise be awarded to more "conventional" evidence.
- Employers should update disciplinary policies and take other steps to warn employees of the potential risks involved in publishing their personal activities on social network sits (in particular that such evidence may be used in disciplinary proceedings).
- In general, it is advisable for employers to have appropriate policies in place regarding the use of social networking sites. It should be clear that the policies apply to both business and personal usage of such sites, whether in or outside office hours and whether using company or personal IT equipment.
- Employers must ensure that communications with employees during any leave of absence are clear and consistent. Communications should clearly state the reasons for the absence and the planned date of return by the employee.