Policy News Journal - 2011-2012

The matter was brought to the attention of W's line manager by two of W's colleagues who were Facebook friends. The manager viewed the messages and considered them "unacceptable". W was suspended pending disciplinary proceedings. W sent a "grovelling" letter of apology which was considered at her disciplinary hearing. However, W was dismissed for misconduct due to the detrimental effect her comments could have on her employer's relationship with Skoda. W appealed against her dismissal but was unsuccessful. The employment tribunal decided that the dismissal fell outside the band of reasonable responses and was therefore unfair. Of importance to the tribunal was the fact that the comments did not actually refer to the client, but rather were complaints about her working conditions and her colleagues. Further, the employer failed to produce any evidence of actual or likely harm to the relationship with Skoda. The tribunal noted that it would be very odd for companies of such a large size to terminate an important commercial agreement because of relatively minor comments made by a junior employee on Facebook. For employees this case is a useful reminder of the risks that come with being Facebook friends with colleagues, however, it also provides useful guidance for employers on how to deal with employees who make work-related remarks on social networking sites. Adverse comments like those seen in this case will almost always warrant some form of disciplinary action, however employers must be careful that they are not too quick to dismiss in such a situation. Making some assessment of the harm that might be caused by the comments is important, especially in relation to the effect on relationships with third parties. Only where there is clear evidence of a negative impact will a serious disciplinary sanction, such as dismissal, be justified. 5 October 2011 A reference referring to allegations against a former employee but making it clear that these had not been investigated was not unfair, the Court of Appeal has ruled. Pinsent Masons reports : J worked for Liverpool City Council ("Liverpool") as a social worker. After 12 years of employment with Liverpool he left to take up employment with Sefton Borough Council ("Sefton"). After he left, concerns were raised by his manager about his work and his record-keeping. When asked for a reference, Liverpool answered a question about J's weaknesses by referring to these concerns and saying that these would have led to a formal improvement plan but he left employment before this was instigated. The reference also referred to J's strengths. In a subsequent phone call J's team leader made it clear to Sefton that as J had left employment the allegations had never been investigated formally and so she could not answer further questions about whether J would be re-employed by Liverpool "in either a positive or negative manner". When J was not appointed to the post, he brought a claim against Liverpool for damages in relation to the reference. Case law has established that references must be true, accurate and fair, with the issue of fairness being judged overall i.e. it should not be misleading overall. The High Court judge considered that the reference was true and accurate but was not fair. Liverpool could have investigated the allegations or alternatively refused to provide a reference at all. Liverpool appealed. The Court of Appeal overturned the decision and held that Liverpool could not be criticised for providing a reference and for including a cautionary remark based on allegations, whilst MENTIONING UNPROVEN ALLEGATIONS IN A REFERENCE NOT UNFAIR

CIPP Policy News Journal

09/10/2012, Page 50 of 234

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