Employee’s Breach of Social Networking Policy Still Sees €18,000 Payout from Marks & Spencer

Social Networking is once again to the fore with a recent Tribunal awarding €18,000 to an employee following their dismissal.

The employee, who was working at Marks & Spencer as a sales advisor, was dismissed for breach of the Company’s Social Networking policy after she commented on posts on a fellow employees page that concerned a manager in the Company.

 Background

The case of Toland -v- Marks & Spencer UD865/2011 revolved around the employee’s participation in the commenting on posts on a social networking site which contravened the Company Policy. The employee was clear that she had never seen sight of this policy and her participation was limited to “lol, ur mental (other staff member), I like it!!” and “lol wats ur rds like?”.

The Company maintained that the employee had previous warnings for absence and if she apologised a lesser sanction would be given and two options were given

  1. One sanction which will bring her up to Stage 3 as she is already on Stage 2 with no appeal;
  2. Stage 4 and she is already on Stage 2 this will result in dismissal.
It should be noted that 1) there was a type on the email sent to the employee and in option 2 above Stage 4 should read Stage 3 and 2) the Company has 5 stages in their disciplinary process, a stage 1 being the least severe sanction. if you are on a stage 2 warning and receive a stage 3 warning it equates to a Stage 5 sanction which is dismissal.

The employee maintained that at no stage were they informed that if they apologised a lesser sanction would be given.

In the determination the Tribunal ruled in favour of an unfair dismissal as the employer was unable to prove the dismissal was fair as they had no evidence of this. They then looked at the employees contribution to this and the employer argued that as she had the option of returning to work and failed to do so this should be taken into account. The Tribunal said that on the basis she was pressed into making a decision and no time was afforded on the options she was to consider or to get advice this basis of contribution is rejected. However her use of the social networking site was “careless” and the award was reflective of this.

Impact for Employers

Employers should again take heed of this, Social Networking is rapidly becoming a prominent fixture of employment law with many cases highlighting dismissal for its inappropriate use. However again the most important element of this is that Tribunals agree that employees should adhere to clear standards when accessing social networking sites, however clear procedures should be followed by an employer and an overall view taken of the situation to see if this case is worthy of dismissal or just a disciplinary sanction.

Social Media is a very important topic for employers as all employees have access to social networking through smartphones and the importance of having a clear policy in place cannot be overstated. Large awards are being seen in Tribunals and a small bit of work now can offset a large payout down the line.  If you would like to get in contact and see how we can help with this please click here for our details.

 

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Thursday, 15 November 2018
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