Social networking is becoming increasingly prevalent throughout society and it has very much pervaded the workplace. This can be of great benefit to companies who may use such platforms for marketing purposes. However, it may also be a source of great disruption for employers when employees are wasting working time engaging in personal social networking. However, a recent EAT decision highlights the importance of employers seeking advice on such issues after an employee was awarded €7000 for being unfairly dismissed as a result of her personal social networking during working time Employee -v- Employer (UD1098/2012) The employee was employed with the company from 1st November 2011 .The Managing Director told the Tribunal that he and the office manager had verbally warned the employee on a number of occasions about her non-work related internet usage. On 16 January 2012, the employee was again on social media site and as a result the MD called her to his office and dismissed her. The employer did so as they believed that the actions amounted to a waste of company time and resources and her actions amounted to gross misconduct. The employee however gave evidence that she carried out all her job tasks and that she had often sought work out when she found herself with spare time. Furthermore, she noted that she had never been issued with a copy of the disciplinary procedures, a contract of employment, and a company social media policy. Tribunal decision The EAT determined that the claimant had been unfairly dismissed due to the lack of procedure on her dismissal. This in itself is not surprising as a solid dismissal procedure is a prerequisite of any dismissal matter. However, what was most interesting was that the Tribunal explicitly noted the failure to issue “the claimant … [with] an internet/social media policy during the tenure of her employment” as being a factor in reaching this decision. This decision clearly emphasizes the importance of employer adapting to the times and providing documentation to cover both social media matters and internet usage during working hours. The employee was awarded €7000. This decision echoes the longstanding views of the EAT which can be tracked right back to 2001 when the EAT in Mehigen v Dyflin Publications (UD582/2001) determined that “it is unlikely that the use of the internet for unauthorized purposes will amount to a sufficient reason justifying an employer from dismissing an employee without notice in the absence of a clear written statement to this effect in the Company’s policy.” Learning Points
- Written Policies are crucial: no matter what conduct issues arise in the workplace, a written policy is crucial when seeking to argue at tribunal that a dismissal was a fair dismissal. In a nutshell, if a matter is deemed so serious that you may dismiss an employee for it, then surely the company ought to have adopted a written policy on it. If you have a concern with something in your workplace then seek advice from Peninsula on implementing a company policy on same so as to safeguard your company should you need to take disciplinary action
- Adapt to the times: employers should always be appraising their internal policies and procedures. Policies that existed ten years ago may be entirely irrelevant now. Additionally, changing social behaviours and legislative developments may mean that you need to introduce a new policy to deal with new issues. Employers should seek advice from Peninsula on their employee handbooks and employment contracts to ensure they are up to date and suitable for your current business needs.
- Dismissal procedures are crucial: one of the biggest causes of unfair dismissal compensation awards against employers arises out of insufficient dismissal procedures. Be it redundancy, conduct performance issues, etc. employers may have a wholly justifiable reason for dismissing an employee but a failure to do so through a fair and transparent termination procedure will likely result in a successful unfair dismissal claim. Thus, it is crucial that employers following a fair procedure before dismissing an employee.
- Document previous warnings: The employer in this case mentioned that he had verbally warned the claimant of her unacceptable internet usage on numerous occasions but at no stage did he issue the claimant with a formal disciplinary warning. Had the employer done so, and issued this employee with a number of formal warnings in writing, then they would have had a far stronger case for dismissing this employee. However, what ultimately happened here was that the employee received numerous informal reprimands for her behaviour and then when the employee reoffended the employer jumped straight to dismissal without ever formally sanctioning the employee. This will rarely ever be deemed a fair dismissal.
