Two recent cases have further highlighted the danger to employees of indulging in inappropriate communications via email and social media that are meant for their friends but find their way to their employer’s attention.
In both cases the comments were made on social media some time ago. In one case the evidence was obtained following a ‘fishing expedition’ by the employer and in the other, evidence was raised by the employee’s manager as a defence against the employee’s grievance. Nonetheless, in both cases the employees were dismissed and both of the employees concerned were unsuccessful in their claims of unfair dismissal against their former employers.
This article will consider the implications of these cases and provide a reminder of how employers can strengthen their position when dealing with inappropriate use by employees of social media and the employer’s email systems.
The first of these cases to be decided on was the high-profile matter of Williams v Leeds United Football Club. Mr Williams, who was the Club’s technical director, was given notice of termination on the grounds of redundancy on 23 July 2013. On 30 July 2013 he was however summarily dismissed for gross misconduct when it was discovered by the Club that, over five years earlier, he had sent an email with the message “Looks like dirty Leeds!!” to a friend at another football club. The email was later described by the High Court as ‘obscene and pornographic’. Following his dismissal it was found that Mr Williams had also sent the email to a female member of staff at Leeds United, who was significantly younger and more junior than him.
Mr Williams brought a claim in the High Court for the value of the salary and benefits that he would have received for the balance of his notice period. He accepted that his behaviour was inappropriate, but claimed that it was not so serious as to enable Leeds United to terminate his contract without notice.
The High Court found that Leeds United had actually made a decision not to pay Mr Williams for his notice period on 22 July 2013, i.e. before notice of redundancy was given on 23 July 2013. The Club was at that time engaged in a ‘fishing expedition’, trawling through his emails to try to find evidence of misconduct. In addition, although the emails were in clear breach of Leeds United’s email and internet use policies, it was established that Mr Williams had never been shown these policies.
Less helpfully for Mr Williams, though, the High Court also found that Leeds United were not aware that he had sent the emails until 24 July 2013. The fact that the Club had committed an anticipatory breach of contract on 22 July 2013 when they decided not to pay him for his notice period therefore did not matter as the High Court held the Club could rely on Mr William’s earlier breach to defend his claim for damages. The fact that the emails had been sent over 5 years earlier also did not matter as what mattered was the Club had acted promptly when they were discovered and the emails were discovered after notice had been given. Their somewhat murky motives were accordingly irrelevant.
The High Court also decided that, in this specific case, it did not matter that Mr Williams had not been provided with the Club’s email and internet use policies. It held that the emails were so clearly inappropriate that he should have known not to send them, particularly given Mr William’s seniority. The Court was further influenced by the fact that the emails were sent to individuals at other football clubs using a Leeds United email address and that the content was clearly linked to the Club, thereby risking significant reputational damage. Finally, the Court decided that the fact that the emails had also been sent to a much more junior member of staff was gross misconduct of itself as there was no evidence that she welcomed such communications, and the difference in seniority meant that she may have found it very difficult to complain about them. Mr Williams had therefore also exposed the Club to a (potentially very damaging) harassment claim.
Although the misconduct in this case was uncontrovertibly very serious, it is notable that the High Court did not see fit to censure Leeds United for its own breach of contract, and the judgment highlights the risks that employees run in using their employer’s email systems to transmit inappropriate material – it could successfully be used against them if the employer wishes to dismiss the employee for entirely unrelated reasons and wants to avoid paying the employee their notice pay.
The second case for consideration is that of Smith v British Waterways Board. Mr Smith was a longstanding employee of British Waterways, and clearly a very dissatisfied one. He raised a number of grievances against his line manager who offered in defence to those grievances a number of Facebook posts made by Mr Smith. In these posts Mr Smith complained about his work and his managers, sometimes in offensive terms. He also stated that he had been drinking alcohol while on standby, contrary to British Waterways’ rules. Some of the comments were over two years old, and it was established that British Waterways’ HR team had been aware of them at around the time that they were made.
Following a disciplinary procedure, Mr Smith was dismissed on the basis that his comments were contrary to British Waterways’ policy on email and internet use and that, in particular, his comments in relation to drinking while on standby had the potential to undermine the confidence that the public had in British Waterways. Mr Smith subsequently issued proceedings in the Employment Tribunal for unfair dismissal. He was successful at first instance as the Employment Tribunal found that, although a fair process had been followed, the dismissal was unfair as the Employment Tribunal decided that the decision was outside of the range of reasonable responses open to his employer. In coming to this conclusion it also decided that British Waterways did not take sufficient account of mitigating factors, including Mr Smith’s hitherto unblemished service record and the fact that the HR team had been aware of the comments for some time but had taken no action.
However the Employment Appeal Tribunal (“EAT”) overturned this decision. It said that the Employment Tribunal had substituted its own view for that of the employer – it was clear that British Waterways had carried out a procedurally fair and sufficient investigation into the allegations against Mr Smith and that, based on that investigation, it was entitled to form the view that his actions constituted gross misconduct. It also found that British Waterways had considered the points raised in mitigation, and the Employment Tribunal was not entitled to find that the company had not taken sufficient account of those points.
This decision is a harsh one, particularly given that, in contrast to Williams, the employer had known of the misconduct but had taken no action. It has surprised many employment law practitioners. However, along with Williams, it highlights that Tribunals and Courts are prepared to take a robust approach in relation to employee’s misconduct. Both decisions also indicate that there may not be a clear point at which social media postings and/ or emails can no longer be used for the purposes of disciplinary proceedings.
The Smith case also highlights once again the importance of complying with the standard principles of carrying out a fair dismissal, i.e.:
- It is vital to have a well drafted policy on social media and email/internet use that links in with your organisation’s disciplinary policy – in particular, breach of the policy should be expressed to be potential gross misconduct. Policies should also make it clear that this is the case even where postings are made on private social media accounts.
- The policy should be brought to the attention of employees. It should be remembered that this element of Mr Williams’ case was decided partly on the basis of his seniority and partly because his actions were so serious that the fact that they were gross misconduct did not need spelling out. However, in less serious cases or cases involving more junior employees the policies that the employer has in place will be of much greater relevance.
- Employees should be treated consistently with others.
- It is vital to investigate matters carefully and as fully as possible. Failure to carry out a proper investigation could, of itself, render the dismissal unfair and render any decisions taken open to challenge.
- You should demonstrate that you have at least given consideration to any points that the employee puts forward in mitigation, even if you later disregard them.
First published in the HR Director, December 2015
Kerry Garcia