1. Employment Tribunal – September 2011
Dismissal for posting comments on Facebook was unfair
Whitham worked for an organisation that provided customer services for Skoda (part of the Volkswagen group).
During a difficult day at work, Whitham posted some comments on Facebook moaning about her colleagues, saying that she felt as if she worked in a nursery. She did not mention any colleagues by name. The posting resulted in other comments being posted by colleagues in response. She had privacy settings on her Facebook account which meant that only her friends could see her posts, and no other user or member of the public had access to her comments.
Her line manager was told about the posts, and he took the view that they were unacceptable. He carried out a disciplinary investigation. Whitham apologised profusely, but was suspended and then dismissed for causing ‘extreme embarrassment’ to the organisation and for putting the organisation’s relationship with Volkswagen Group at risk. Whitham appealed, but the dismissal was upheld.
There was a company policy in place that stated that employees’ obligation of confidentiality extended outside of the workplace. The policy clearly stated that posting information on social media sites could be a breach of confidentiality.
The employment tribunal found that the dismissal was unfair. The comments made were relatively mild, they did not name anyone, they were not specifically about Volkswagen and they did not include any confidential information. It also concluded that Whitham was a relatively junior employee, and it was unlikely that her comments could damage the commercial relationship with Volkswagen.
In addition, Whitham had an exemplary record with no disciplinary issues prior to this incident. On that basis, the tribunal concluded that dismissal was not within the band of reasonable responses open to a reasonable employer.
Note for employers
In contrast to this case, there have been other ‘Facebook’ cases where the dismissal has been found to be fair – for example Preece v JD Wetherspoons . However, the important difference in this case was that no names were included, the comments were mild and were only visible to the claimant’s friends on Facebook. In contrast, in the Preece case the employee had posted abusive comments about two customers which were accessible to the world at large.
2. Northern Ireland Industrial Tribunal – March 2012
Obscene comment about colleague on Facebook amounted to harassment and justified summary dismissal
Teggart worked at a Call Centre. He posted an obscene comment alluding to the promiscuity of a female colleague on his Facebook page. He did this in his own time, at home. The comment that was posted named the organisation and was read by Teggart’s friends, which included some work colleagues. The female colleague did not have access to the page, but heard about the comment and asked Teggart’s girlfriend to ask him to remove it. Teggart was offended by this and so he posted another lewd comment about his colleague.
The matter was brought to the attention of management. No investigation meeting took place, but Teggart was suspended pending formal investigation. There was then a disciplinary meeting at which Teggart was dismissed for gross misconduct – namely bringing the company into disrepute by naming it in his post, and harassing a fellow employee. Teggart appealed, arguing that the comments were meant as a joke.
The Industrial Tribunal did not accept the argument that Teggart had brought the company into disrepute, and criticised the lack of investigation. However, it did find that Teggart’s comments had breached the company’s Dignity at Work policy, and amounted to harassment.
Although the investigation was inadequate, Teggart had admitted posting the comments. Therefore, the dismissal was fair because harassment of a colleague did amount to gross misconduct.
Note for employers
There were clearly some deficiencies with the way that this case was handled by the employer. However, Teggart’s actions did amount to harassment in that they created a degrading and humiliating environment. The Tribunal found that harassment could occur where comments were made to others, rather than being made directly to the person who was the target of the comments.
3. High Court – August 2013
Before leaving the company, the employees in this case set up a rival business and attempted to solicit clients and employees for the new venture. They also attempted to use the company’s LinkedIn groups to promote their new business. After leaving, the ex-employees refused to disclose the LinkedIn access details to the company, so the company did not have administrative access to its own pages. The company sought ‘springboard’ injunctions to prevent its former employees from misusing its confidential information to gain an unfair commercial advantage.
Employees are increasingly using social media sites, such as LinkedIn, to connect with existing and potential clients. There are clear benefits to their employers in this while they remain in employment – but what happens after their employment ends? There has been little guidance from the courts on this until recently when the issue of LinkedIn contacts came before the High Court in the case of Whitmar Publications Ltd v Gamage.
Gamage and other senior employees at Whitmar set up a rival publishing business and attempted to solicit clients and employees for the new venture while still working for Whitmar. They also removed around 450 business cards containing client contact information from the employer’s premises, and attempted to use the company’s LinkedIn groups to promote their new business.
After leaving employment, the employees refused to disclose the user name, password and access details for the LinkedIn groups to Whitmar, so the company did not have administrative access to its own LinkedIn pages. And one of the employees, who had previously managed Whitmar’s LinkedIn presence, extracted the company’s client contact details from LinkedIn in order to invite clients to a drinks event with the new venture.
Whitmar sought ‘springboard’ injunctions to prevent its former employees from misusing its confidential information to gain an unfair commercial advantage.
The court granted Whitmar the springboard injunctions, which are interim measures, having been persuaded that the company had a good chance of succeeding at trial. The injunctions forced the employees to facilitate the company’s access, management and control of the LinkedIn pages, and restrained them from doing anything to stop the company from accessing the pages. The employees were also prohibited from entering into contractual relations with any of the 450 clients named on the business cards they removed.
Although the employees did not have written contracts of employment – and, therefore, no post-termination restrictions – – the employer was able to rely on the implied duty of good faith and fidelity. This had been infringed by the employees in the steps they had taken during employment to set up a competitive business venture.
Note for employers
This case provides welcome assurance to employers that where they require employees to maintain LinkedIn pages on their behalf during the course of employment, the courts are likely to find those contacts belong to the employer. The case also sets a precedent that injunctions may be granted where former employees try to misuse such contacts post-termination.
However, the case did not answer the wider, more common question of what happens to an employee’s personal LinkedIn account where the maintenance of the page has not been required by the employer but where the employee is nevertheless connected to the employer’s contacts.
To protect their commercial interests in such situations, employers should ensure their contracts of employment include enforceable post-termination restrictions, including non-solicitation and non-dealing with the former employer’s clients. Employers should also have robust social media policies outlining acceptable use of social media and dealing with the ownership of business contacts made during the course of employment.
Some commentators also suggest including express provisions in employment contracts requiring employees to delete their employer’s business contacts on the termination of their employment. But it is not clear whether the courts would enforce such provisions. However, the greater the degree of connectedness between the employment and the LinkedIn page, the more likely such a provision is to be enforceable. Other practical measures, such as requiring employees to set up LinkedIn pages during working hours using their work photo and work contact details, may be prudent.