Facebook page criticising employer did not justify dismissal
Stephens v Halfords plc ET/1700796/10
Date added: 9 February 2011
unfair dismissal | gross misconduct | social media
Employees’ entries on social media critical that are of their employer will not always justify dismissal, as this case demonstrates.
This case is a good example of how an employer must take mitigating factors into account when deciding on the level of disciplinary sanction for an employee who has committed misconduct.
An employee who is unrepentant in his or her belief that his or her behaviour was not misconduct may lead the employer to the reasonable conclusion that the same thing might happen again in future.
However, if an employee recognises that his or her actions were wrong and confirms that there will be no repetition, the employer will find it harder to dismiss him or her fairly.
Mr Stephens was a deputy store manager at Halfords, the well-known retailer. At the time of the events concerned, he had six years’ service and a clean disciplinary record. In early 2010, he was absent due to stress. At this time, the company was proposing a workplace reorganisation, and consulted teams and individuals on its proposed changes.
While he was off sick with stress, Mr Stephens attended consultation meetings on the company’s proposed changes, and was informed that the information given to him was confidential. His understanding was that the extent of the confidentiality was until all consultation had been completed, because by that stage all employees would have been informed as to the company’s proposals.
Following his consultation meeting, Mr Stephens accessed the company’s employee website from home, and discovered that the group consultation had been completed, and that all employees were aware of the details of the proposed changes. He felt that the employee website, being controlled by the company, did not provide an unrestricted and open forum for debate among staff. He therefore, on 2 February 2010, put up a Facebook page entitled “Halfords workers against working 3 out of 4 weekends”.
On 4 February 2010, Mr Stephens accessed the employee website and noted the company’s policy on social networking sites. This stated that employees who made public statements about the company that were not in its best interests, or who actively encouraged dissent, would face disciplinary action. As a result of this information, Mr Stephens took down the Facebook page, but the company found out about it and began disciplinary proceedings.
At the disciplinary hearing, Mr Stephens was contrite about his actions and said that he had been off work with stress, and that as a result his judgment might have been clouded. He said that he would not act in the same way again, but was dismissed summarily for breach of trust, for posting confidential information on a social network site. Mr Stephens’ appeal against dismissal failed, and he claimed unfair dismissal.
The tribunal considered that the company’s investigation and belief in the alleged misconduct was reasonable, not least because Mr Stephens had admitted to it. However, the tribunal found that no reasonable employer could have concluded that summary dismissal was the appropriate sanction. In doing so, the tribunal noted that Mr Stephens had a clean record; apologised for his actions; and removed the offending page as soon as he realised it was a ground for disciplinary action. There was nothing to indicate to the company that his misconduct rendered the continuing employment relationship untenable. Accordingly, the tribunal upheld Mr Stephens’ unfair dismissal claim, and awarded him £11,350 in compensation.
- 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 fellow colleagues.
- Get more information on social media issues in the XpertHR FAQs section:
- What can an employer do if an employee posts a derogatory comment about it on a social networking site?
- If the identity of the person who posted derogatory comments about it on a social networking site is unknown, what should the employer do?
- If an employee has used social media to make a defamatory comment about one of his or her employer's competitors, what should the employer do?