Don’t do Facebook
Facebook is not a good place to air workplace grievances as Mr Atherton discovered in his claim of unfair dismissal against his employer, Bensons Vending Limited. It appears staff morale was low after the company reduced its discretionary Christmas bonus due to financial constraints – the bonus becoming a gift of a bottle of alcohol.
A colleague of Mr Atherton posted a picture of Ronald McDonald on Facebook followed by the comment: “the only difference between McDonalds and where I work is McDonalds has only one clown running the show”. Mr Atherton joined in the Facebook conversation including making a comment about sticking the bottle where the sun doesn’t shine – presumably he was not referring to putting the bottle in the fridge to cool. No-one was specifically named in the Facebook comments. Mr Atherton and his colleague were also outspoken in the workplace and complaints were made to the Managing Director.
Mr Atherton’s colleague was approached and apologised almost immediately and was ultimately disciplined and given a final written warning. Mr Atherton faced an allegation of gross misconduct in that he made a series of Facebook comments which were derogatory about the company’s Managing Director. During the disciplinary hearing chaired by the Managing Director, following an adjournment with his trade union representative, Mr Atherton apologised.
Mr Atherton was dismissed without notice or payment in lieu of notice by the Managing Director. His appeal to the Financial Controller was not upheld. He brought a claim of unfair dismissal and also wrongful dismissal due to the failure to pay his notice.
The Tribunal accepted that Mr Atherton’s comments were derogatory of the Managing Director giving the impression that the Managing Director was ‘Scrooge like’ and ‘mean spirited’. Those comments could be seen by anyone on Facebook. The Tribunal were however sceptical that the Company had been brought into disrepute as it tried to argue. It was the view of the Tribunal that there were grounds to take disciplinary action against Mr Atherton and also went on to say that the decision to dismiss did not fall outside of the band of reasonable responses. The Employment Judge said he was unable to conclude that no reasonable employer in these circumstances would dismiss Mr Atherton, especially having regard to the small nature of the business and that it would have been obvious the Facebook messages referred to the Managing Director.
What about the difference in treatment between Mr Atherton and his colleague who received a final warning? The Employment Judge decided that the Company was entitled to take into account the fact the colleague apologised promptly whereas Mr Atherton had two meetings where he did not apologise and only did so towards the end of the disciplinary hearing.
Interestingly, Mr Atherton was successful in his claim of wrongful dismissal because the Employment Judge concluded that his behaviour was not so serious as to demonstrate an intention to no longer to be bound by the terms of the employment contract!
As this is an Employment Tribunal case, it is illustrative only. In cases such as these, employers will often use the argument that the comments have brought the organisation into disrepute, however, there really does need to be evidence of a loss of reputation. Without evidence, the Tribunal are unlikely to accept this. The case also demonstrates that if a fair procedure is followed, the employee will often struggle to persuade a Tribunal that absolutely no other reasonable employer would have dismissed in the same circumstances – describing an employer as Scrooge like is hardly the worst crime. The difference in the timing of the apologies is a reminder how an employer is entitled to genuinely take that into account when considering sanctions for misconduct. Finally, for very small employers, it should be noted that the allegedly Scrooge like Managing Director was also the person who dismissed Mr Atherton – Employment Tribunals do recognise that sometimes there are simply not enough managers to have someone entirely independent to hear a disciplinary matter.