Employment Law Explained

Derogatory “Private” Comments on Facebook Not Unfair Dismissal

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Don't be Rude about Apple

 

A trickle of Employment Tribunal cases are coming through on dismissals associated with inappropriate or derogatory comments on Facebook.  The most recent, being Crisp v Apple Retail Ltd (unreported, as far as I can see) which held that an employee who posted (unspecified) derogatory comments about Apple and its products on a “private” Facebook page outside of his working hours was not unfairly dismissed for gross misconduct.  I would be interested to see the Judgment rather than just the brief summary in People Management Magazine (useful though that is) if anyone has it.

The key points were;

  1. The employee made derogatory comments about the products and the company, which were in breach of Apple’s  social media policy which strictly prohibited commentary (critical or otherwise it seems) on the brand.
  2.  The fact that the comments were made on a “private” Facebook page (whatever that is exactly, I’m not sure) was no defence because the “friends” who did have access were able to read, copy and disseminate the comments more widely.  The employee wasn’t able to rely on breach of his right to privacy under article 8 of the Human Rights Act 1998 – anything put on Facebook (and other social media platforms) isn’t private, by definition.  The case of Pay v Lancashire Probation Service established this point back in 2003.
  3.  The employee could not succeed with his claim under Article 10 of the HRA  1998 that his right to freedom of expression was infringed because Apple were able to argue that his dismissal was a justified and proportionate response in order to protect its commercial reputation.  Again, this point was established in Pay.

It seems that the employee hoped that the fact he had set his “privacy” settings to limit the circulation of his status updates and posts would be enough to protect him.  This case is a reminder to employees that it won’t be: once a comment is posted it is out there and any “friend” (in this case a colleague) could pass the message on outside the restricted circle of friends. Indeed, this seems to be how all these Facebook cases arise, when a so-called “friend” actually grasses up the unfortunate employee.

The report in People Management Magazine says that this shows the importance of employers having a comprehensive social media policy.  I agree with that and have said as much many times before on this blog and elsewhere, but it doesn’t end there. Compare this decision with that given in Stephens v Halfords Retail PLC a few months ago, where comments made by an employee about the proposed restructuring were not sufficient to warrant dismissal for gross misconduct.  In that instance Halfords also had a social media policy that prevented adverse comments, yet they were seen to have acted unreasonably in dismissing Mr Stephens. How can the two be reconciled?  Does it depend on the strength of the brand?  If you’re an unloved company can your employers be more critical of you than if you’re a much respected (in Apple’s case, adored) business?

The crucial point is in establishing that the organisations reputation or commercial interests are damaged by the comments.  In Crisp, Apple was able to persuade the ET that they were.  Sadly we don’t know what Crisp wrote and that is a major problem in analysing the case further.  But if he had made reasoned criticisms of Apple, rather than merely abusive ones, it is a worrying decision.  Of course, this is only an ET case and doesn’t set a binding precedent, but the whole issue of whether a business’s commercial interests are damaged by comments made on social media is something that needs a great deal more clarity.

 Derogatory “Private” Comments on Facebook Not Unfair Dismissal   unfair dismissal social media

Michael Scutt, Employment Solicitor 

Employment solicitor with Crane and Staples, Welwyn Garden City, Hertfordshire. Blogger & writer. I like cycling, cricket, football and history.

5 Responses to Derogatory “Private” Comments on Facebook Not Unfair Dismissal

  1. John Read says:

    Hi Michael

    We’ve obtained the transcript for this judgment, and I’ve written up a full report on XpertHR here: http://www.xperthr.co.uk/article/111262/apples-dismissal-of-employee-for-adverse-facebook-comments-not-unfair-or-breach-of-human-rights.aspx (the report is free to view, and subscribers can see the transcript).

    The tribunal focused on the importance that Apple places on its brand/image/reputation, which it reflects in its various policies and procedures. This was a key factor in its decision. The fact that the employee’s Facebook page was private – in the sense that only his “friends” on Facebook could view his posts – indeed made no difference.

    Although the tribunal found that he did not have a reasonable expectation of privacy over the posts (a colleague showed them to his manager), it implied that things may have been different if Apple had obtained the information by hacking into his Facebook account – he would not reasonably have expected Apple to infringe his privacy in that way.

    I agree with you that a social media policy is a good idea, and did a recent blog on the subject here: http://www.xperthr.co.uk/blogs/employment-tribunal-watch/2011/11/social-media-policies-are-not-stupid.html (I’d appreciate your thoughts!). I also agree that you need more than just a policy – there clearly doesn’t need to be actual, proven reputational damage, but Apple convinced the tribunal that there was a “high risk” that its reputation could be damaged by the employee’s posts. As you say, Apple is a much-loved company, and it is extremely sensitive over its brand and image – it must be easiest for it to prove a risk to its (global and, generally, very good) reputation than a company that brings the same argument to a tribunal without any evidence to back it up (just an assertion that it could cause some sort of damage).

    Finally, the employee’s comments weren’t reasoned criticisms – he was abusive, but Apple seems to have objected to just as much to his criticism of its products. Interestingly, two Apple employees whom he alleged had also posted inappropriate comments on Facebook were given final written warnings (one referred to “jailbreaking” an Apple phone; the other for referred to an unspecified Apple product not working correctly).

    John

  2. Michael Scutt says:

    Hi John

    That’s really helpful, thank you. You couldn’t send me the transcript could you? :-)

    I think the developing area of law here is going to be over reputational risk to businesses. An employee at News International could probably get away with more than an Apple employee at the moment!

  3. Jumoke Adejimola says:

    I think the difference between Stephen V Halford and the case you are discussing is that the employee in Stephen v Halford deleted his comment not long after posting it when he realised he would be in breach of the social media policy. The tribunal thought it was unreasonable to dismiss in these circumstances.

  4. Thanks for the comment. That may well be part of the answer and I think contrition by the employee is always going to be a strong factor – in Crisp the employee was said to be unapologetic. Also Stephens comments weren’t as bad as Crisp’s so the reputational issue may not have been so important.

  5. annoyed says:

    Absurd that these goons think companies’ reputation matters more than free speech. It’s no wonder human rights are dead in Britain since they’re trumped by corporate fiat.

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