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;
- 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.
- 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.
- 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.