Social Networking – an employee wins claim for Unfair Dismissal

A recent case at the EAT found that an employer (Marks & Spencer) were in fact unfair in dismissing an employee because of what they considered to be a breach of their social networking policy and so were ordered to pay compensation of €18,000 + notice to the former employee.

Key points of the case were as follows:

  • The company was not in a position at the hearing to provide evidence of the disciplinary meeting or provide the witness who made the decision to dismiss and therefore were unable to prove that the dismissal was fair.
  • The claimant, had already been the subject of a ‘stage one’ warning for absenteeism. She missed eight shifts in a 26-week period, though five of these absences were legally certified.
  • The company argued that she had participated in three conversations with a colleague on a social networking site which concerned a manager in the store.
  • And while the employee attended an investigatory meeting in relation to the breach of the social network policy, she said that she had never heard of the policy before and that her social networking conversations were limited to the following:

‘Iol, ur mental (to another staff member) I like it!’ and ‘lol wats ur rds like?’.

  • The claimant denied talking about her manager and insisted that she did not intend to hurt or disrespect anyone.
  • The company said that she was offered the chance to apologies to the manager but that it was rejected by the employee, she however said that she was never given that option, which she said she would have gladly done.

The Employment Appeals Tribunal then looked at whether the employees actions had in fact contributed to her dismissal. While the company suggested that she had contributed to her own dismissal, the tribunal found that she had not been given a chance to consider her position or seek advice in a fair and open manner but that she had contributed somewhat by “careless misuse of a social networking site” and therefore the compensation awarded reflected this.

(Arlene Toland v Marks & Spencer, Letterkenny – UD 865/2011)

Give us a call to talk about your Social Networking, we can help you put an effective policy in place and ensure your staff know and understand the company policy on their use of the various social networking sites, contact Joyce or Fredericka at contact@voltedge.ie.