Photo by Alex Haney on Unsplash
Regular readers of this Blog will know that I have written several articles over the last few months about the legal consequences of social media (mis)use and the effects on relationships in the work place. Comments or images posted on social media by employees can have serious reputational consequences for their employers.
The Israel Folau case
In a blog published on 11 April 2019 (Social Media Misuse), I discussed the story about Israel Folau, the Australian rugby player who had posted homophobic comments on social media. Folau has now been dismissed by Australia for these remarks.
Please see a link to the story on the Sky News website:
Israel Folau: Australian rugby star sacked over anti-gay social media post
http://news.sky.com/story/israel-folau-australian-rugby-star-sacked-over-anti-gay-social-media-post-11721930
The employer must, of course, be able to prove reasonably that the employee’s misuse of social media will cause it to suffer reputational damage.
In Taylor v Somerfield Stores Ltd ETS/107487/07 an employee was dismissed after posting a video on Youtube which involved a mock fight using Somerfield carrier bags in the work place. The video was uploaded to Youtube for a mere 3 days and only 8 people had viewed it – 3 of whom were managers conducting the disciplinary investigation. The Employment Tribunal was firmly of the view that the dismissal was unfair because the employer was not able to prove that it had suffered serious reputational damage.
As I have emphasised in previous blogs, employees will be very naive if they think that it is a competent defence to say that the social media posts occurred outside working hours. Employers are still very much entitled to treat such behaviour as an example of a breach of work place discipline. In serious cases of social media misuse, employers will be entitled to consider dismissal of employees on the grounds of misconduct (as per Section 98(4) of the Employment Rights Act 1996).
Admittedly, this area represents something of a tightrope for employers to walk: they will have to operate a clear and comprehensive social media policy and employees must be made aware of any restrictions or expectations.
In the unreported Employment Tribunal decision of Grant and Ross v Mitie Property Services Ltd (2009), the employer had a policy which restricted employee internet access. Unfortunately, for the employer, the phrase which permitted employee’s personal use of the internet to times that were “outside core working hours”, was deemed by the Tribunal to be ‘vague’ and lacking in certainty. This meant that the employees who had been dismissed because the employer was of the view that they had breached its policy on internet use had been unfairly dismissed.
There is also the matter of the rights that employees reasonably have to privacy and freedom of expression (as per their Article 8 and 10 rights respectively to be found in the European Convention, the Human Rights Act 1998 and the Scotland Act 1998) (see Bărbulescu v Romania Application no. 61496/08 5 September 2017; and Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch)).
I have also pointed out in previous blogs, the importance for employers in carrying out disciplinary proceedings which comply with current ACAS Guidance. Using the (current) ACAS Guidance is a critical risk management exercise for employers:
https://beta.acas.org.uk/investigations-for-discipline-and-grievance-step-by-step
Employers who act recklessly or swiftly and ignore proper procedures may well have cause to regret their actions down the road. As Sir Robert Megarry VC, the eminent English judge, remarked decades ago in John v Rees [1970] 1 Ch 345:
“When something is obvious, they may say, why force everyone to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? … As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; …”
The above remarks are as valid in 2019 as they were in Sir Robert Megarry’s day.
Atherton v Bensons Vending Ltd ET/2411749/2018
This is a recent decision of the Manchester Employment Tribunal which raises some very interesting issues about employee use of social media specifically and the conduct of disciplinary proceedings more generally.
Darren Atherton (aged 55) worked for Bensons Vending Ltd, a small company. As a result of his employer making changes to its discretionary Christmas bonus scheme, Atherton made some very negative comments about the company’s Managing Director, Ken Haselden via a colleague’s Facebook page:
Comment 1
“We’ve all just bought Ken a new dog with our Christmas bonus!!!”
Comment 2
“He spends a few grand on a new dog then we get told ‘no bonus this year’ but we can have a bottle!!!
Comment 3
“Well, he can stick his bottle where the sun doesn’t shine because I refuse to be insulted in this way!!!”
Atherton’s colleague, Simon Minshull had initially objected to the changes to the bonus scheme by posting comments on his Facebook page:
Comment 1
“Just when you thought staff morale couldn’t get any worse, hey f***ing presto #insult #disgusted.”
Comment 2
“The only difference between McDonalds and where I work is McDonalds has only one clown running the show.” (This second comment was accompanied by a picture of Ronald McDonald).
The changes to the bonus scheme were part of a cost cutting and efficiency savings exercise by the company and, from any reading of the above comments, Atherton and Minshull clearly disagreed with this new approach by their employer.
Negative remarks about the Managing Director were also made by Atherton and another colleague in the workplace. Several colleagues informed Haselden about these remarks stating that they had been very aggressive and vitriolic in nature.
Atherton’s colleague, Simon Minshull, was subsequently questioned about the posts on his Facebook account by Haselden. Minshull stated that he did not agree with them – they were Atherton’s opinions – and he apologised for any offence caused to Haselden. He was later suspended for the Facebook posts, but critically this suspension was lifted in the light of his swift apology to Haselden (and the fact that it was established that he had not made these comments). Minshull was permitted to return to work upon the conclusion of the disciplinary proceedings against him.
Atherton was called to a meeting with Mr Haselden in December 2017 to address the allegations which had been made against him and to investigate the social media posts. This was not a disciplinary meeting, but more in the way of an investigatory meeting. The actual disciplinary meeting took place in January 2018.
Dismissal without notice pay
The outcome of the disciplinary meeting was that Atherton should be dismissed without notice pay for gross misconduct in terms of Section 98(4) of the Employment Rights Act 1996. This was despite the fact that Atherton had a clean disciplinary record (until now) and had enjoyed a good relationship with his employer. Atherton’s comments on Facebook were “extremely derogatory” and Mr Haselden stated that he would find it “extremely difficult” to continue working with him. Atherton appealed against his dismissal, but the decision was upheld.
The fairness of the disciplinary proceedings
As part of his claim against the employer, Atherton challenged the fairness of the disciplinary proceedings taken against him. In particular, he objected to the fact that Haselden conducted the disciplinary meeting against him. Atherton’s contention was that he would not receive a fair hearing because Haselden was personally involved in the matter and, therefore, could not be relied upon to act objectively. This type of issue frequently arises where smaller employers are concerned. In an ideal world, a manager (such as Haselden) who has been involved personally in an issue involving alleged breaches of work place discipline should not be a participant in the disciplinary panel. This is, of course, easier in practice to ensure in larger organisations where there is a pool of experienced managers who will have had no personal involvement in the matter (or in other words: a particular axe to grind).
The appeals process
In situations involving smaller employers, this is where the appeals process takes on a critical significance. Appeals can often be used to cure actual or perceived defects in the conduct of the original disciplinary meeting. Although Haselden (with two others – an operations manager and a company engineer) had conducted the disciplinary meetings, he had not involved himself in the actual appeals hearing. This part of the company’s disciplinary procedure had been conducted by a Ms Pedley, a trained auditor and, as stated, above, Atherton’s dismissal was upheld.
At this point, Atherton also raised the difference in treatment between himself and Simon Minshull (who had kept his job after disciplinary proceedings against him had been concluded). Pedley refused to comment on individual cases on the grounds of confidentiality. She stated in her letter to Atherton upholding the dismissal that:
“Length of service and clean disciplinary record are taken into consideration during all grievance procedures. However, given the
nature of the comment and the reluctance to remedy the grievance the
relationship between yourself and senior management has broken down
irretrievably”.
The Employment Tribunal’s decision
The Tribunal held that Atherton had been fairly dismissed in terms of Section 98(4) of the Employment Rights Act 1996.
He had made extremely derogatory comments via Facebook about Haselden. They were “personal” and they suggested “some impropriety” on Mr Haselden’s part (though more in the nature of “penny-pinching impropriety” suggesting Scrooge like behaviour rather than any financial misdeeds). Any member of the public who knew the company and reading Atherton’s comments on Simon Minshull’s Facebook site, would have a very negative view of Haselden. It was accepted by the Tribunal that Haselden would, therefore, potentially suffer reputational damage. It was also accepted that in a small company, it would be very difficult for Atherton and Haselden to work with one another again (the employment relationship had irretrievably broken down).
The Tribunal also addressed Atherton’s claim that the disciplinary procedure had been biased or lacking in objectivity because of Haselden’s involvement in the decision to dismiss him from employment. This indeed could have been a problem for the employer and may have prejudiced proceedings against Atherton. That said, however, the saving grace for the employer was the fact that Ms Pedley had been kept in reserve for an appeal hearing.
The Employment Tribunal Judge made the following observations about Pedley’s involvement in the appeal stage:
“Ms Pedley is by profession an auditor and had clearly gone through the matters in great detail. Notes (page 95 and onwards) show how she dealt with the matter. … Because of that safeguard of the deployment of Ms Pedley, who I am satisfied went about her task objectively and exhaustively and independently, although regrettably for the claimant she came to the same conclusion, I am not satisfied that the determination by Mr Haselden at the dismissal stage rendered the dismissal unfair. The appeal was thorough, it was a re-hearing. Ms Pedley considered all the points that were being raised and came, I am satisfied, to an independent conclusion.”
As for the difference in outcomes between Atherton and Simon Minshull, a key justification for this was that Minshull had “apologised shortly after being challenged regarding his Facebook comments even though he had been suspended.” This was something that Atherton had failed to do – apologising only at the disciplinary meeting in January 2018. Furthermore, it was significant that the nature of Atherton’s comments were specifically directed against Haselden, whereas Minshull’s comments (although also negative) were much more generalised.
The failure to pay notice pay
This was an aspect of the employer’s decision that the Employment Tribunal disagreed with. Atherton, therefore, had a right to receive his entitlement to notice pay. In this sense, he had been wrongly dismissed by his employer. The Employment Tribunal judge stated very clearly that in order for an employee to lose his entitlement to notice pay there the employer must be able to demonstrate that the gross misconduct complained of crosses over a “very high hurdle”. In the judge’s opinion, the employer had not been able to overcome this hurdle and, therefore, Atherton was entitled to claim notice pay.
A link to the Employment Tribunal’s judgement in Atherton v Bensons Vending Ltd can be found below:
Conclusion
What have we learned about the decision of the Employment Tribunal in Atherton v Bensons Vending Ltd?
Quite a lot actually:
- Employees will have to be extremely careful when posting material or comments on social media platforms – irrespective of whether this is about the employers or not.
- The case is yet another good example that misconduct committed inside or outside the work place or working hours can have reputational consequences for the employer. It can also lead to relationships in the work place breaking down irretrievably (especially in smaller organisations).
- Employers do not have a free hand to police employee use of social media. There must be clear guidelines laid down by the employer as to what constitutes acceptable and appropriate behaviour. At the same, employees have reasonable expectations that their rights to privacy and expression (as per the European Convention on Human Rights) will be upheld.
- The conduct of disciplinary proceedings by the employer is a critical issue. We have noted that potential conflicts of interest can occur in smaller employers or organisations where a manager can be investigator, dismissing officer and appeals officer. How does the employer address these issues and ensure objectivity in the disciplinary process?
- As with Atherton and Minshull, the employer was entitled to treat them differently: Atherton was dismissed while Minshull retained his job. There was nothing inconsistent or inherently unfair about this when the personal circumstances and behaviour of the two employees was examined.
- Finally, even in situations where gross misconduct has been proved by the employer, and the dismissal is deemed to be fair (in terms of Section 98(4): Employment Rights Act 1996), it will not necessarily mean that the employee loses his or her right to notice pay. The employer will have to overcome an extremely high hurdle in order to be entitled to invoke such a disciplinary sanction. As we have seen in Atherton, the Tribunal was not convinced that the employer had been able to prove that this was an appropriate punishment: the dismissal was fair; the failure to pay notice was not.
Copyright Seán J Crossan, 20 May 2019
Seán Crossan's Scots Law 
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