Victoria Rae | Solicitor

Reasonable response?

Juli Briskman

You might have not have heard of Juli Briskman but the chances are you’ve seen her. She is the woman pictured raising a middle finger at Donald Trump’s motorcade. Many saw her as a hero. Akima, Juli’s employer and a government contractor, did not.

Juli was subsequently called into a meeting and dismissed, for allegedly violating the company’s social media policy (it was her social media profile pictures). Akima were also concerned about their reputation as a government contractor. Even though her social media pages did not mention her employer and the incident happened in her own time, Juli was still dismissed.

Could this happen in the UK?

Yes.

Virginia is known as an employment-at-will state. This means the law, which governed Juli’s employment, allows employees to be dismissed without good cause. At-will-employees do have statutory protection, namely the prohibition of being dismissed for discriminatory grounds.

In Scotland (along with the rest of the UK), employees only get protection from unfair dismissal if they meet the qualifying period, which is 2 years/103 weeks continual service. Juli had only been employed for 6 months, which means she would have no protection from unfair dismissal had she been employed in Scotland. The automatically unfair exceptions would also not apply for Juli. In theory, Scotland could be described as being an employment-at-will state for employees that don’t meet the qualifying period.

Can you be dismissed for what’s on your social media page, even if you’re over the qualifying period?

Yes.

An employer must have a potentially fair reason for the dismissal and the employer must have acted reasonably in treating that reason as sufficient to justify dismissing the employee.

In the cases of social media dismissals, the key things tribunals look at are:

  • The wording of the employers’ social media policies

These must be clearly worded if the employer wishes to be able to rely on a breach of it in order to discipline or dismiss an employee.

In the case of Preece v Wetherspoons , a pub manager lost her case that her dismissal had been unfair. Ms Preece was dismissed following comments made on Facebook about customers whilst at work. Wetherspoons social media/IT policy allowed for disciplinary action to be taken if social media comments by employees were found to ‘to lower the reputation of the organisation, staff or customers and/or contravene the company’s equal opportunity policy’.

  • Proportionality in the dismissal

The disciplinary action taken must be proportionate to the damage caused, if an employer is relying on damage to reputation from a comment made on their employee’s social media.

In the case of Taylor v Somerfield Stores , a manager was successful in his claim for unfair dismissal after being dismissed for posting a video on YouTube of two colleagues hitting each other with plastic bags in an anonymous storeroom. The video only had eight ‘hits’, mainly by the disciplinary panel viewing the video. The employer failed to show the company had been brought into disrepute and the dismissal was held to not be within the band of reasonable responses by a reasonable employer in the same circumstances.

A cautionary tale of GBBO

At the beginning of 2017 it was estimated there were 42 million social media users in the UK. All social media users, especially employees, need to remember that once something is published online it can be extremely hard to retract. We just have to look at the recent GBBO (Great British Bake Off for those non-cake lovers) blip/scandal by Prue Leith. Even though her tweet was quickly deleted, the damage was already done. Thankfully for Prue, channel 4 bosses have confirmed she will return to GBBO 2018 so Prue will not be needing employment law advice anytime soon. Long story short, if employees are doubtful over how their comment could be taken, they shouldn’t post it! Otherwise, they risk being on thin ice(ing).

If you are an employee or employer and require any advice or assistance in relation to the above please contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855.

Victoria Rae

Victoria Rae

Personal Injury Team | Connect with Victoria

I enjoy building a rapport with my clients and helping them through the litigation process, which I appreciate can often be a daunting experience.

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