Social Media and Settlement Agreements

Non derogatory clauses are a common feature in settlement agreements

Employees often post derogatory comments about Employers on Facebook both before and after settlement agreements are signed. This can be dangerous

Social Media is a phenomenon that has revolutionised how people and businesses can communicate. Its use has proliferated through various guises such as Facebook, Twitter, Instagram, LinkedIn and YouTube, to name but a few. The benefits of social media are well publicised but it also poses risks which can be damaging

So take the imaginatively named Mr A, an employee of XYZ Ltd, a leading international coffee shop chain. Mr A posts some derogatory comments on Facebook about XYZ’s customers and products. Amongst Mr A’s Facebook friends are numerous colleagues who duly report the posts to management.

An increasing number of businesses now have a Social Media policy and those that do not may be hard pressed to take any meaningful action in these circumstances.

If the employee admits involvement and agrees to remove the offending material the employer should not assume that the proper disciplinary process can be averted. XYZ must follow the Acas Code of Practice on Discipline and Grievance Procedures which includes a full and fair investigation, allowing the employee to explain his behaviour and considering any mitigating factors. If the employee does not admit involvement then a more thorough investigation may be required.

At a minimum, a reasonable investigation will include gathering evidence; this would include screenshots of the offending posts and any further comments, details of the amount of online friends that Mr A has and the potential for others outside of Mr A’s friend group to see the posts.

An integral part of obtaining this evidence is that it must be obtained in a lawful way. Hacking into an employees Facebook account to obtain evidence would be unlawful, whereas if XYZ accessed the content legitimately using their own Facebook account then this would be lawful. A colleague of Mr A may provide XYZ with the evidence or allow XYZ to access the post through their account. XYZ must justify that their response in continuing any sanction is within the ‘range of reasonable responses’ that applies to substantive unfair dismissal claims.

Case law examples

In Taylor v Somerfield, T posted a video on YouTube, taken during working hours, which showed him behaving inappropriately. His employer decided this amounted to gross misconduct and brought the company into disrepute; T was therefore dismissed. The Tribunal held that S had not carried out a full and fair investigation as the offending video had only been viewed by 8 people during the 3 days that it was online and had not been shared elsewhere; at least 3 of these views were by S during the investigating period. It was therefore held that dismissal was not in the ‘range of reasonable responses’ as S reputation had not been damaged– a written warning would perhaps have been more reasonable in these circumstances.

Furthermore, the potential impact on existing business relationships may be a factor which determines whether dismissal was reasonable. In Whitham v Club 24 Limited t/a Ventura the Employment Tribunal found that there had been an insufficient investigation into whether ‘relatively mild’ comments made by the employee on Facebook had a negative effect on the relationship between her employer and a major client – the Tribunal held that these comments were unlikely to have an effect on a multi-national and multi-billion pound relationship. Dismissal was therefore unfair as not being a reasonable response and demotion would have been more appropriate.

However, dismissal was deemed to be within the range of reasonable responses in Preece v Wetherspoons plc. Miss Preece was a manager at a Wetherspoons pub and during a shift, was subjected to abuse at work by two customers and then subsequently by telephone. Miss Preece resorted to Facebook to vent her anger and these comments were seen by the customer’s daughter who reported them to Wetherspoons.

Wetherspoons media policy warned employees about posting comments which could lower its reputation or the reputation of colleagues or customers and any breach of the policy could constitute gross misconduct. After an investigation, Wetherspoons concluded that Miss Preece’s actions had lowered its reputation, breached policy and breached the duty of mutual trust and confidence. Miss Preece was dismissed and subsequently filed a claim for unfair dismissal. Miss Preece submitted that she did not realise the conversation was visible to all 600 of her friends and that the comments were a joke. Despite this, the Tribunal stated that dismissal was within the range of reasonable responses and that the dismissal was accordingly fair.

If you are accused are breaching a social media policy you should check your social media and disciplinary policies. If you are offered or have signed a settlement agreement containing a non derogatory clause, you should absolutely not post anything about your employer until you have taken full advice on the agreement.

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