Inappropriate use of email and social media leads to dismissal

 

PPMA EMPLOYMENT LAW UPDATE June 2011(5)

 

Inappropriate use of email and social media leads to dismissal

 

Developments in communication technology, together with increasing interest in and use of social media, present both potential benefits and risks to employers. Two recent employment tribunal cases illustrate the importance of employers having clear policies and procedures regarding their use by employees and the potential consequences should these be breached.

 

In the case of Gosden v Lifeline Project Ltd the tribunal found that the dismissal of an employee who had sent an offensive email from his home was fair. The employee worked for an organisation engaged by HM Prison Service (HMPS) to assist drug users in prisons. The governor of the prison the employee was assigned to work at complained about his attitude and behaviour to his employer. The employee was suspended and then issued with a written warning and transferred to another prison. Some time later he sent an offensive and discriminatory email from his home computer to the home computer of an HMPS employee, a former colleague at the first prison. The email contained the words “It is your duty to pass this on”. The recipient of the email forwarded it to another person at the prison and it then entered the HMPS computer system. HMPS investigated the matter and the employee was excluded, both from the prison to which he was then assigned and to others in the area, on the basis that the email was in breach of HMPS policy on diversity and professional standards.

 

The employer suspended the employee and, following an investigation and disciplinary hearing, dismissed him for gross misconduct. His internal appeal against this was unsuccessful and he made a number of tribunal complaints, including unfair dismissal. The tribunal rejected this complaint, finding that a reasonable employer would be entitled to regard his actions as something that might damage its reputation and integrity. It was clear that HMPS discovery of his email within its computer system and the fact that this had originated with the employee had led to his exclusion from their prisons in the particular area. This had damaged the employer’s reputation with HMPS, a major client, who were now of the view that the organisation was content to employ someone who appeared to hold views which were inimical to that client’s objectives and values. The tribunal concluded that the decision to dismiss was within the band of reasonable responses and that this was a fair dismissal.

 

Although not raised by the employee, the tribunal also considered the potential implications under the Human Rights Act in relation to the right to privacy, bearing in mind that the email was sent in the employee’s own time from his home computer to a former colleague’s home computer. Although the employer was not a public authority and convention rights did not therefore have any direct applicability, the tribunal considered the privacy issue in the broader context. If the email sent by the employee had been a piece of private correspondence intended only for the recipient, the tribunal might have found that privacy attached to it. However, it had been sent with the express intention that it be passed on and it was not therefore a confidential communication.  

 

The case of Preece v JD Wetherspoons plc concerned an employee who made comments on Facebook, and who was subsequently dismissed for gross misconduct. The employee had been subjected to verbal abuse and physical threats by two customers in the pub where she worked. Although she dealt with the situation professionally and correctly at the time, later, whilst still at work, she vented her anger by posting a number of abusive and inappropriate comments about the incident on Facebook. She thought her privacy settings meant that these comments would only be seen by certain people. However, the customers’ daughter saw them and complained to the employer. The company’s disciplinary policy listed a failure to comply with its email, intranet and internet policy and bringing the company’s name into disrepute as examples of potential gross misconduct. Her actions were found to be in breach of this policy and, following an investigation and disciplinary hearing, she was dismissed. Her internal appeal was unsuccessful and she made a complaint of unfair dismissal.

 

The employment tribunal found the dismissal to be fair. The employer had a genuine belief that the employee was guilty of gross misconduct, had reasonable grounds for that belief, having carried out a reasonable investigation and their decision was within the band of reasonable responses.

 

These cases highlight the importance of employers:

  • having a clear policy regarding the use of email, intranet and internet, and of social media, and being clear about what this covers;
  • ensuring this is clearly communicated to employees and that they understand the potential consequences of any breach of this policy;
  • taking prompt action to address any such breaches.
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