2 February 2015

Paul Scholey, Morrish Solicitors

Following his presentations on Social Media and Employment Rights at IER events in Liverpool and London last year, Paul Scholey, Head of Employment Rights at Morrish Solicitors has updated us on a court decision relating to one of the cases he discussed.

Lake v Amey Services Ltd Sheffield ET 1807678/2013

L was employed by ASL, a large infrastructure company delivering services inter alia to Network Rail.

In July 2013 L was called to a site where a vehicle had rolled into collision with a wall, next to which was a warning sign reading “Beware Moving Plant.” Not oblivious to the incongruity, L photographed the scene and posted the picture to his Facebook Account, with the caption, “Good job someone thought to sign a warning!”

After a disciplinary hearing and appeal, L was summarily dismissed for gross misconduct.

Proceedings were brought for unfair dismissal and wrongful dismissal.

L was successful on both counts.

His compensation was however reduced by one third for contributory fault.

In its lengthy Judgment (29pp) the ET concerned itself with a number of procedural irregularities specific to the facts of the case, but made a number of observations and findings that might be helpful for representatives pursuing other cases with a Social Media angle.

• Although ASL proved no actual damage to reputation, it was relevant that L’s actions had the potential to bring the company into disrepute
• But the policy should have been clear about whether actual or potential disrepute was a disciplinary matter
• ASL’s Social Media policy mentioned “bringing the company into disrepute” BUT there was “little, if not no, awareness amongst employees of the contents of [the policy]”
• L’s ignorance of the SM policy was “powerful mitigation”
• It also prevented the policy from being incorporated into L’s contract of employment
• L’s length of service (7 years) was in his favour
• The Facebook post was removed after a short period of time
• L was genuinely remorseful
• Dismissal was outside the band of reasonable responses
• Other first instance (i.e. ET) decisions were of “little help”

Despite the last point, this decision runs very much along the lines of the previously decided ET authorities.

In particular training/communication of Social Media policies is a key issue in these cases.

Contributory fault seems to be a likely finding in most broadly similar cases, running at, say, 20 – 40%.

Employees should act swiftly upon receipt of a complaint. See also Stephens v Halfords plc (2010) where the employee was quick to remove an offending post, apologised and gave assurances about future conduct. All of these will be helpful in terms of mitigation.

The ET in Lake was willing to take a general view on the Band of Reasonable Responses – something we think ETs are often (sadly) all too unwilling to wrestle with. Taking into account mitigation, ASL had overreacted to what was, many might think, a fairly trivial act.