The Employment Tribunal (ET) had to consider, in the case of C Smith v Turnock Ltd, whether or not it was reasonable to dismiss an employee for sharing a social media meme that mocked management styles.
Facts
The claimant reposted a meme onto her Facebook page which showed the figure of a woman blindfolded and sat in front on another figure, also blindfolded. Above the woman are the words “We’ve all had jobs like this…” and below her are the words “How management act after you and your co-workers clearly point out the issues at work.” The claimant’s Facebook account states that she works for the respondent.
The respondent saw this post and believed that it was disparaging to management and the company itself. They also concluded that it was in breach of the company policy on social media and internet use.
The following day, the claimant was called to a meeting which was held later that same day. When the post was shown to the claimant, it was the respondent’s position that the claimant denied putting it on her Facebook page. The claimant was dismissed for gross misconduct. Only patchy notes were taken of the meeting.
Whilst the claimant appealed, the original decision stood. The claimant then brought a claim for unfair dismissal.
Employment Tribunal (ET)
The ET found that it was difficult to say whether anybody looking at the meme would directly link it to the claimant’s working environment. In any event, they found that it was not directly critical of the respondent and made no comment on the claimant’s working environment. The social media and internet policy stated that nothing should be posted on social media that could reasonably be considered to damage the company or adversely affect it. The ET held that it was unlikely that the meme would have damaged or adversely affected the company. It would have warranted a discussion with the claimant and perhaps for her to be issued with a warning. However, it did not justify dismissal.
Can I stop an employee from posting negative comments on social media?
Do I have to give employees evidence before a disciplinary hearing?
What is an investigation?
The ET also found that virtually no notice or advanced warning of what was going to be discussed at the meeting was given to the claimant. There were also no minutes of the meeting nor of the appeal meeting that was also hurriedly convened.
The claimant, therefore, succeeded in her unfair dismissal claim.
Takeaway points
This provides a useful reminder for employers to make sure that there is a policy in place that governs the use of social media by employees. If a situation arises, it is important to take a step back and consider whether there has been a breach when looked at reasonably, rather than reacting in the heat of the moment. Dismissals for gross misconduct should be reserved for conduct that is so serious that it goes to the heart of the contract between the employer and employee.
This case is also a good reminder of the importance of following a fair procedure. Fully investigating concerns should be the first step. Then, if there are matters that justify progressing to a disciplinary hearing, the employee should be given reasonable notice, the right to be accompanied and given the allegations, plus any evidence, in advance of the hearing.
