Preece v JD Wetherspoons plc

This case highlights the importance for an employer of having a robust social media policy as the use of Facebook and other social media sites continues to increase.

Ensuring that a robust social media policy is incorporated into an employee’s employment contract is essential as a new generation of employees are using social networks both at home and at work.

In this case, Miss Preece posted repugnant comments about several customers who had recently subjected her to a tirade of abuse when she had been working at a pub.  The daughter of one of the subjects of the comments saw the posting and complained to Wetherspoons who investigated.

Miss Preece’s employment contract clearly stated that her contract could be terminated if she was found guilty of gross misconduct.  The contract referred to a staff handbook which set out the company’s disciplinary and dismissal policy and listed examples of gross misconduct of which bringing the company name into disrepute was one.  Further, the handbook clearly stated that a failure to comply with the e-mail, internet and intranet policy could amount to gross misconduct.  This latter policy referred to blogging and defined this term succinctly, using the example of blogging derogatory comments on Facebook, which could damage the organisation’s reputation as an example of when the company could take disciplinary action against an employee.

During the investigation, Miss Preece admitted posting the comments on Facebook whilst at work.  She also stated that she knew her actions brought her into conflict with the company’s internet policy.  She said she thought her privacy settings were such that her comments would only be seen by privileged friends and whilst she knew she shouldn’t vent her anger in this way she had only done so because she was upset and angry.  This was despite the fact that Wetherspoons had a 24 hour ‘hotline’ to provide support and assistance to employees faced with difficult situations and problematic customers.

Miss Preece was dismissed because her comments were held to be inappropriate and identified Wetherspoons specifically.  Her actions breached company policy and amounted to gross misconduct.   Miss Preece’s appeal was unsuccessful and she brought a claim for unfair dismissal.

Her claim was dismissed.  The Employment Tribunal found that Wetherspoons had a genuine belief about the nature of Miss Preece’s conduct and reasonable grounds to sustain that belief having conducted a thorough investigation.  The dismissal fell within the range of reasonable responses available to Wetherspoons in the circumstances.  The Tribunal ruled that despite Miss Preece’s belief about her account’s privacy settings, her comments were still in the public domain.  Her right to freedom of expression could be fettered if the comments could damage reputation, in this case her employer’s.  Miss Preece posted the comments whilst working, however, had she posted same comments at home the Tribunal stated that Wetherspoons might still have had the right to act in the same way.

The case highlights the importance for employers of having a clear policy regarding the use of social media.  Employers should ensure that they:

• have a social media policy which is clear and succinct and encompasses the different forms of media which employees have access to and details what is not permitted both inside and outside of work;
  
  
• define key terms within the policy, such as “blogging”, giving examples where applicable;
  
  
• provide employees with a copy of this policy and explain what will happen if the policy is infringed;
  
  
• list examples of gross misconduct; and
  
  
• have a clear and concise investigatory and disciplinary procedure.

Breaches of the policy must be addressed properly and consistently so as to place the employer in a strong position to defend any resulting claims of unfair dismissal.