Kristy Preece had just cleared the Ferry Boat Pub in Runcorn in Cheshire. The shift on May 24th, 2010, had been difficult – mainly because of two abusive customers called Brian and Sandra. Ms Preece, a shift manager, had been threatened with a cane. Not unreasonably, she asked the elderlies to leave the pub.
Under protest, they departed. In fact Sandra got into her car and drove home despite the fact that she had drank several brandies. But that wasn't the end of the story. As Kristy wound down, she took to her Facebook account and began telling her friends about her ordeal.
Referring to the aforementioned Sandra, she posted a message at 9.17pm stating "f----- hag, I hope her hip breaks!" A fortnight later, her employer, JD Wetherspoons received a complaint from the couple's daughter, Leslie Roache about the posting on Kristy's private Facebook account.
On June 14th, 2010, and following a disciplinary investigation, Kristy Preece was dismissed from her job on the grounds that she had breached the company’s internet policy by lowering its reputation. The net result, said the investigating Mr Cripps, was a breakdown in trust and confidence.
The employment tribunal in Liverpool heard her appeal on January 18th, 2011. She argued that she had an unblemished work record and that her dismissal was disproportionate. Furthermore, she thought she was communicating with a restricted group comprising a handful of close friends – and not as was the case, the entire internet community.
Dismissal
But the tribunal upheld her dismissal and accepted that her actions constituted gross misconduct. Her right to freedom of expression under under Article 10 of the Convention on Human Rights did not prevent her dismissal because her action damaged the reputation of her employer.
This case draws into focus the new dimension which the internet and social media usage has brought to the workplace. But obstacles which didn’t exist before can be encountered by people in advance of commencing employment as Jenny can recall.
“I left the job interview with a good feeling,” says the software engineer who understandably didn’t want her surname used. “I felt my prospective employers were impressed by my work experience. I genuinely liked them.”
The feeling was mutual – until her prospective boss checked out Jenny’s Facebook page. They didn’t like the series of photographs of Jenny at her friend’s 30th birthday party. She was pictured having different types of fun involving alcohol, watersports and other activities which did not present her in a positive light.
Jenny didn’t get the job. The interviewers probably fall into the category of 81 per cent of employers who in a survey carried out by a big Irish law firm in 2013 said they would be negatively influenced by inappropriate material on job candidates’ social media profiles. The workplace is now a conflict zone between employees’ rights to privacy, their freedom of expression and on the other hand, their employers’ entitlement to have their reputations protected.
This tension represents a new blurring of the boundary between a people's public or work profile and their private lives. For human resources managers and their staff, sites such as Facebook, LinkedIn, Twitter, Flickr are red-hot with controversy.
It’s new territory also for the courts who cannot seek guidance from any dedicated social media statute. When confronted with claims around competing interests of workers and their bosses, judges try to be as reasonable as possible and make decisions based on underlying rights and obligations.
Operate harmoniously
The competition in the clash of the different interests will never be eliminated. But it must be managed if various parties are to operate harmoniously. Of vital importance to employers and employees is the existence of a company internet policy. Such a policy must be fair, flexible and crucially, it must have a strong profile in the company’s daily operations.
Upon writing an internet policy, employers should notify their employees of the following:
Social media usage and the internet generally is a positive force. Employees should be encouraged to use it for legitimate productive purposes. Equally, they need to be warned about its destructive capacity;
Excessive use of social media for personal purposes during working hours can constitute misconduct;
Universal access
Employees’ social media profiles have universal access. They can be monitored legitimately by their employers;
Postings on social media sites can have a bearing on the commercial interests of the employer and can affect fellow employees, clients and other persons. Just because a message, photograph or video is posted from an employee’s privately owned smart-phone while on holidays does not mean it cannot be defamatory or otherwise dangerous;
Employees must take responsibility for social media postings and should use privacy settings carefully. Efforts should be made to separate personal and professional postings;
Employees should be advised to report suspect internet activity which might comprise hacking, bullying or the passing of commercially sensitive information;
Employees need to be made aware that reckless use of social media inside or outside working hours may have consequences including disciplinary proceedings. A link should be made to the company’s Grievance and Disciplinary Policy.
Mark O’Connell is a practising barrister who specialises in public liability and employer liability litigation.