Unfair dismissal for ‘inept and crass’ tweet
Elliott v Lloyds Banking Group
For all its good points, social media presents countless challenges for employers and employees. In particular, employers will be at pains to not be associated with any comments made by their employees that are ill-advised or offensive.
Ms Elliott was the manager of a small Lloyds Bank branch. She posted the following tweet from her personal Twitter account:
‘Open fire on #calaismigrants then they will soon go home and stop causing the #ukproblems’
Ms Elliott’s Twitter profile contained her full name but it didn’t refer to her employer, her job or her place of work. However, her LinkedIn profile contained the same profile picture as her Twitter account, and it identified her as being a bank manager employed by Lloyds. She didn’t know that an online search using her image could connect the two social media accounts.
That’s what happened; someone retweeted Ms Elliott’s tweet, attaching an image of her LinkedIn profile. It led to various people tweeting to complain, identifying Lloyds. Although she deleted her Twitter account straightaway, believing that that would remove her posts, Ms Elliott was dismissed. She was alleged to have breached this provision of the employer’s Personal Integrity Policy (PIP):
‘...electronic or social media sent or used within, or related to, the Group [must] not contain abusive, obscene or libellous comments...which might harm the reputation of the Group.’
Unfair dismissal, said the tribunal. There were all sorts of things wrong with the decisions taken and the process carried out by the employer, including an unsatisfactory investigation and a defective hearing. The following points are of particular interest: -
1. No reasonable employer would have concluded that dismissal was proportionate. Even if Ms Elliott had breached a policy (which she hadn’t), there was plenty of mitigation, including her unblemished disciplinary record and the fact that no one would really have thought that she was making the comment on behalf of Lloyds.
2. A reasonable employer would not impose any sanction on an employee where, as in this case, the relevant company policies were not contractual or didn’t have direct application. However, it would be reasonable for an employer in these circumstances to require the employee to remove reference to her employer’s identity from her online profiles.
3. Ms Elliott had not contributed to her dismissal, even though her tweet was ‘inept and crass’. Relevant to that decision was the tribunal’s finding that she was not in breach of any policies (her tweet wasn’t sent within and didn’t relate to Lloyds, therefore wasn’t covered), and that she enjoyed a right to freedom of expression.