Abusive Facebook comments led to pub shift manager’s dismissal
Preece v JD Wetherspoons plc ET/2104806/10
Date added: 31 March 2011
unfair dismissal | gross misconduct | social media | employer's reputation
In this case, an employee’s inappropriate use of Facebook after a workplace incident led to her summary dismissal.
This case is a good example of how, in terms of unfair dismissal, apparently mitigating factors are actually no justification or excuse for an employee’s misconduct. If the claimant’s Facebook entries had all been made very shortly after the incident occurred, the employer may have considered her misconduct warranted a final written warning rather than dismissal.
The case also demonstrates the value of having a clear and comprehensive policy on employee’s use of social media, which is an increasingly important problem area for employers.
Miss Preece was employed by JD Wetherspoons plc as a shift manager, working at the company’s Ferry Boat Pub in Runcorn, Cheshire. She was aware of the company’s policies regarding “blogging”, which expressly referred to sites such as MySpace and Facebook. The policies stated that employees should not write or contribute to a blog, including Facebook, where the content lowers the reputation of the company or its customers, and the company reserved the right to take disciplinary action where this occurred. Miss Preece was also aware that, if an emergency situation arose when she was acting manager, she could ring a hotline number and access the support of a pub manager at any time.
On 24 May 2010, Miss Preece and a colleague, Mr Ainsworth, were subjected to “a shocking torrent of verbal abuse and physical threats” by a group of people, particularly two customers known as Brian and Sandra. Miss Preece was threatened with a cane and, as a result of their behaviour, asked Brian and Sandra to leave the pub. It was acknowledged at the tribunal hearing that Miss Preece dealt with the situation professionally and correctly.
In the early evening, Mr Ainsworth took what turned out to be the first of four telephone calls from someone he believed to be Brian and Sandra’s daughter:
- In the first call, Miss Preece was told: “Get your fucking P45 ready because you’re out of here”.
- In the second call, Mr Ainsworth was asked to “put that slag of a manager on the phone”. After Miss Preece took the call, she was called a “snide bitch” and abused further.
- In the third call, Miss Preece was called a “whore” and to “get her P45 ready”.
Mr Ainsworth did not pass the fourth call to Miss Preece, or tell her about it (until after her investigation meeting), on the basis that it was likely to follow the same pattern of abuse. During this call, the woman was threatening, stating: “Tell that fat fucking slag of a manager I know where she works, what car she drives and tell her to watch her back the snide fucking bitch”.
Around 6.30pm, Miss Preece began a Facebook discussion by making an entry that consisted of the words “fuck off, fuck off, fuck off”. A discourse took place between her and several work colleagues that included a discussion of the events with Brian and Sandra earlier that day. At one point, Miss Preece wrote, in reference to Sandra: “Fucking hag! Hope her hip breaks”. She later named the customers by posting, “Sandra and Brian barred ha ha ha!” At this point, the two customers had not been barred, merely asked to leave the pub. Miss Preece was on duty throughout the entire Facebook discussion, and at no point did she use the company’s facility to contact a manager using the hotline provided.
On 7 June 2010, the company received a complaint from Leslie Roach (Sandra and Brian’s daughter) about Miss Preece’s Facebook entries of 24 May 2010. Ms Roach was concerned about the “offensive comments”, which had been made public, and that Miss Preece hoped that her mother’s hip would break. The company began an investigation, during which Miss Preece admitted that her actions were in breach of company policy. However, she argued that her privacy settings meant that her Facebook messages would have been seen only by between a maximum of 40 to 50 close friends, rather than all her friends, which numbered 646 in total. She also stated, in mitigation, that she had been subjected to three abusive telephone calls (at this stage not knowing about the fourth).
A disciplinary hearing was held in respect of allegations that Miss Preece had failed to comply with company policy and had lowered the reputation of the organisation, and that her actions had led to a fundamental breakdown in trust and confidence. Miss Preece conceded that her actions were not acceptable, and she was dismissed for gross misconduct. She appealed on the basis that the mitigating factors she had put forward, namely that she had been under “severe pressure and provocation” were not given consideration, and that she had not mentioned the company or the name of the pub in her entries. The appeal officer upheld the original decision. He was clear that the Facebook comments were identifiable as being about work, and that they were not as secure as Miss Preece claimed, given that they had been picked up by a customer. Miss Preece claimed unfair dismissal.
The tribunal found that the company genuinely believed that Miss Preece had committed an act of gross misconduct, and that it had reasonable grounds on which to do so. It also found that the company had carried out as much investigation into the matter as was reasonable in all the circumstances. The tribunal was surprised that the company had not addressed the part played by the other employees involved in the workplace discussion. However, Miss Preece did not raise, either at her disciplinary hearing or on appeal, the issue of her colleagues not being investigated or disciplined. The tribunal also found that only one of these colleagues had posted an abusive comment (that Sandra was a “moaning old hag”), whereas Miss Preece’s communications were clearly abusive.
The tribunal found that Miss Preece’s Facebook activities were, regardless of her belief about the privacy of her communications, in the public domain. The tribunal stated that, under the European Convention on Human Rights, Miss Preece has the right to freedom of expression, but the company’s actions were justified in view of the risk of damage to its reputation. The tribunal also found that the disciplinary and appeal officers had taken Miss Preece’s mitigation arguments into account, and that her Facebook entries did not reflect her upset and anger at the situation, citing the fact that the discussion took place over a lengthy period of time and well after matters had calmed down.
The tribunal stated that, although this was a case where it may have been more inclined to award a final written warning to Miss Preece than dismiss her, that opinion was irrelevant for the purposes of deciding her unfair dismissal claim. It found that Miss Preece had been fairly dismissed.
- Policy on social networking websites Use this model policy within the company's internet policy or staff handbook to set out the accepted use of social networking websites.
- How to deal with an employee who has posted negative comments about the organisation on a social networking site With the growing popularity of social and business networking sites such as Twitter, Facebook and MySpace, employers are increasingly finding that employees are turning to such sites to air grievances about their employer and colleagues.