Is this classed as Gross Misconduct ??

patman99

At the end of the day, if the company has no policy regarding posting on online forums or blogs, then they have no solid defence.

Can you imagine what would happen at the ET?.
It would probably go like this -

ETPanel - 'So, in light of the comment made by the claimant regarding the redundancies, did you at the time have in place a policy within their contract of employment outlining unacceptable posting of comments ?.'

Company - 'No'

ETP - 'Did you require your employees to sign a secrecy statement in regards to the redundancies ?.'

Company - 'No'

ETP - 'Based on the fact that posting comments online is no different to making comments to friends down the pub and that you have no policy in place covering this, we find in favour of the complainant.'

In reality, what if the lady had gone home and said to her partner 'Companyx is making people redundant just before Xmas, it is so unfair'.
Her partner could very well tell their work colleagues the next day, who in turn, tell their partners etc, etc.
At the end of the day, the affect is the same.

I can honestly say that a law regarding posting non-defamatory comments online really needs to be passed.

I always say this, if you want to post about your employer, at least have the brains to hide behind a ficticious ID.

Nicki

patman99 wrote: »

I can honestly say that a law regarding posting non-defamatory comments online really needs to be passed.

To say that a company is making redundancies IS defamatory though. If the company were to sue you, you may be able to raise a defence of justification, but that doesn't take away from the fact that the comment as it stands IS legally actionable under the law of libel. And therefore ought not to be made by an employee on facebook, and is a disciplinary issue if it is.

Sambucus_Nigra

patman99 wrote: »

At the end of the day, if the company has no policy regarding posting on online forums or blogs, then they have no solid defence.

Of course they have. They can't have a policy for every little thing that employees do; they will have a blanket policy of 'bringing the company into disrepute'.

Uncertain

Nicki wrote: »

To say that a company is making redundancies IS defamatory though. If the company were to sue you, you may be able to raise a defence of justification, but that doesn't take away from the fact that the comment as it stands IS legally actionable under the law of libel.

It cannot be libellous if it is true. It doesn't matter how unpleasant, unwelcome or damaging it is truth is 100% defence.

As stated by many others in this tread, posting damaging comments about your employer is a breach of trust and can potentially justify dismissal for gross misconduct. For this purpose truth is no defence.

Nicki

Uncertain wrote: »

It cannot be libellous if it is true. It doesn't matter how unpleasant, unwelcome or damaging it is truth is 100% defence.

As stated by many others in this tread, posting damaging comments about your employer is a breach of trust and can potentially justify dismissal for gross misconduct. For this purpose truth is no defence.

Thank you for your explanation of the law. As a libel lawyer with more than 10 years experience, it was most welcome :rotfl:

I did not say that a true comment could be libellous. You are correct that truth is a defence to an action for libel, though the burden of proof is on the employee to show it is true, not the employer to prove it is false.

What I SAID was that the comment was DEFAMATORY which term is not interchangeable with libellous, and beyond doubt the comment in question was defamatory. Defamatory means loosely that the words in question brought the complainant into disrepute, whereas libellous means that the words brought the complainant into disrepute with no lawful excuse, such as truth, privilege or fair comment.

A defamatory statement is the trigger for lots of kinds of action, which includes both actions for libel, and disciplinary procedures in an employment context, and this statement was defamatory. That is the only point I made, and therefore patman's proposed new law would not in fact help the OP's neice in this case, even if it in fact existed.

SarEl

serious_saver wrote: »

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My personal experience, as someone who has used the service, has been that they are helpful and supportive. There was no issue with them compounding the problem. However that was some time ago and things may have changed. I'm prepared to admit that quality does change over time.

I am a lawyer, and your experience of a few years ago is not shared by many people who have had to use the ACAS service since 2009, when it was re-orgnaised into a call centre staffed by low paid, unskilled people with a grand total of two days training and a script. This is exactly the same amount of training as a CAB "employment advisor" (and I am obviously not talking about their specilaists - although few agencies have one - who are either trained in the law or legally trained volunteers). Two days training and a script qualifies you to say "I really don't know very much about employment law" and nothing more. After 30+ years in the law I am still learning, and couldn't even say that I don't make mistakes (especially with the simple stuff that I don't deal with on a day to day basis - the complex stuff is easier for me!). I routinely hear, here and elsewhere, the most appaling stories of misinformation and downright poor advice from ACAS. I routinely hear of people being given "legal advice" by ACAS - which they are explicitly not permitted to do - and using that advice to end up in the most horrendous situations. I have even heard stories of ACAS staff refering callers to specific solicitors - which is in contravention of their role and regulations. I would never the ACAS call centre (and that is not their professional mediators) to anyone now - you may as well call British Gas...

But on a slightly different note, I do find it interesting that this thread appears to have turned into a debate on freedom of expression. What freedom of expression? Freedom of expression has always been limited, so what is so surprising about the fact that employers also limit it? What many people here are doing is exactly what a tribunal can't do - they are substituting their own opinions (and outright guesses) for that of the employer. Whether this constitutes gross misconduct (and whether they dismiss for it - because an employer does not have to dismiss even in cases of gross misconduct) is the employers choice. A tribunal can only determine if the outcome (should it be a dismissal) is within the reasonable range of responses. And they may or may not. But given the number of posts here and elsewhere, stories in the newspapers etc., etc., It quite simply beggars belief that people still post things about their workplace and employer on social media and are surprised that it gets them into trouble.

Yes, within proscibed limits, people are free to say what they wish. And employers, within certain limits, are also free to employ who they wish. "Freedoms" work both ways.

SarEl

Nicki wrote: »

Thank you for your explanation of the law. As a libel lawyer with more than 10 years experience, it was most welcome :rotfl:

I did not say that a true comment could be libellous. You are correct that truth is a defence to an action for libel, though the burden of proof is on the employee to show it is true, not the employer to prove it is false.

What I SAID was that the comment was DEFAMATORY which term is not interchangeable with libellous, and beyond doubt the comment in question was defamatory. Defamatory means loosely that the words in question brought the complainant into disrepute, whereas libellous means that the words brought the complainant into disrepute with no lawful excuse, such as truth, privilege or fair comment.

A defamatory statement is the trigger for lots of kinds of action, which includes both actions for libel, and disciplinary procedures in an employment context, and this statement was defamatory. That is the only point I made, and therefore patman's proposed new law would not in fact help the OP's neice in this case, even if it in fact existed.

I agree (although this isn't my field of law) - there is a difference between what you say and how you say it.