In Trench v Performance Bar Limited, a tribunal decided that an employee who was sacked for liking and sharing a Facebook post which criticised her boss was unfairly dismissed. It awarded over £3,000 in compensation.
What happened?
Drinking on shift
Demaris Trench (DT) began working at Trebles (T), a bar in Lincoln, in 2018. Her partner, Dan Sargent (S), also worked for T. The establishment was owned by Hamish Patel (P) who also drank and socialised in the bar. After he was accused of drinking alcohol during his shift, S resigned immediately. Once home, he wrote a Facebook post about P.
Creepy and inappropriate
The post stated that P was ‘a creepy and wildly inappropriate man’ who ‘allowed underage drinking at the bar’ and didn’t provide his employees with breaks. S also accused P of failing to follow appropriate Covid-19 guidelines, stating that T was an unsafe environment for both its staff and customers.
Liked and shared
In support of her partner, DT liked and shared S’s post about P on her own Facebook and Snapchat accounts. When P discovered this, DT was suspended. She raised a grievance which was ignored and was then dismissed for gross misconduct at the end of October 2020.
Where did T go wrong?
Policies
T had no grievance, disciplinary, harassment, equality or social media policies. There were also no other clear policies in place that DT was expected to follow or that warned her that her conduct might be a disciplinary issue.
Reasonableness
You can dismiss an employee for an unacceptable post on a personal social media account, but you must act reasonably. Here, DT hadn’t written the offending post herself and she removed it from her account shortly after liking and sharing it. She had a clean disciplinary record and apologised for her actions.
Procedure
T failed to conduct a formal disciplinary process before dismissing DT. The dismissal was procedurally and substantively unfair.
How can you avoid the same mistake?
Social media policy
A clearly worded and communicated policy on the use of social media will inform staff of the standards of behaviour that you expect when they are posting on social media and the consequences of committing online misconduct. Cross-refer to your disciplinary rules
Training
Reinforce your social media rules through online training. Require your employees to acknowledge that they have read and understood your social media policy.
Don’t overreact
You are entitled to guard your reputation jealously. However, not every criticism on social media warrants summary dismissal. Consider:
Whether the post has damaged your business. If so, how and what evidence supports your conclusion?
Whether any of the allegations are true or at least arguable.
Whether the post was widely seen.
Whether your employee has a hitherto unblemished disciplinary record.
Whether the post was swiftly removed, and your employee is contrite about their actions.
Whether a written or final warning would be sufficient.
