It was recently reported that a NatWest employee would be subject to disciplinary proceedings for telling a customer who had applied for a loan for a nutrition diploma that 'vegans should be punched in the face'. But does such conduct justify dismissal and what approach should an employer take in these circumstances?
The NatWest case is not the first time an employee has ‘let off steam’ by making completely inappropriate or offensive comments to a customer or client – or about an employer via social media. Such comments may amount to gross misconduct, which would justify summary dismissal.
While it is universally accepted that some types of misconduct such as fraud, theft, physical violence or gross negligence will amount to gross misconduct justifying dismissal, other types of misconduct, such as rudeness to customers or the use (or misuse) of social media, are not so clear-cut. And whether they amount to gross misconduct may vary depending on the nature of the employer’s business and the particular circumstances.
The first step for any employer wishing to dismiss is to check whether the particular ‘misconduct’ is covered by a disciplinary or social media policy.
The perils of not having a social media policy were shown in the employment tribunal case of Lerwill v Aston Villa Football Club, where Lerwill was dismissed for making comments on an unofficial fan website that negatively affected the reputation of the Club and criticised his work colleagues. Although Lerwill accepted his comments were inappropriate and he had previously been told not to post comments on message boards, the tribunal decided that his dismissal was unfair. A key factor was that he had never been given any explicit guidance warning him that comments on a public message board could lead to disciplinary proceedings and dismissal for gross misconduct, and there was no policy in place on internet forums. As such the decision to dismiss (in the tribunal’s view) was ‘outside the range of reasonable responses'.
By contrast, where a disciplinary policy makes it clear what type of behaviour an employer considers to be gross misconduct and that policy is clearly communicated to employees, a tribunal will be more likely to find a dismissal fair.
This was the case in Crisp v Apple Retail (UK), where the tribunal found that Crisp was fairly dismissed for making derogatory comments on Facebook about Apple products. A decisive factor was that Apple had clearly set out in its policies what was expected of staff in terms of online conduct and emphasised to staff the importance of protecting its image. The consequences for breaching its policy were spelled out and it warned that the making of derogatory comments on social media was likely to lead to dismissal for gross misconduct.
The importance of consistency
Not only is it important for employers to have a disciplinary and/or social media policy, but they must act consistently within the terms of any such policy, otherwise they run the risk of a finding of unfair dismissal. In Walters v Asda Stores Asda had a clear and comprehensive social media policy entitled 'Internet abuse – don’t blog your way into trouble!' The policy gave examples of misconduct that would be regarded as 'minor breaches', such as posting on a blog: 'working at Asda is rubbish' or 'why are customers such w***ers?' and warned that online comments would be monitored. Walters, who was a customer service manager, posted a comment on her Facebook page that although she was supposed to love her customers, hitting them over the head with a pickaxe would make her feel much happier.
The tribunal decided that the decision to dismiss Walters was unfair and not within the range of reasonable responses. While there was no doubt that she had committed an act of misconduct, this fell within the employer’s own category of examples of ‘minor breaches’ and not gross misconduct in its social media policy. As such the employer was not justified in dismissing her.
The way forward
Whether a dismissal will be regarded as fair or unfair will always be fact-sensitive. But there are a number of steps employers can take to deter or mitigate against any tribunal claims, beginning with a clear and well-drafted policy that sets out the standards of behaviour expected, and that is consistently applied and communicated to all staff.
Kevin Charles is a consulting barrister at Crossland Employment Solicitors