Gill v SAS Ground Services UK Limited confirms that employers are able use posts on social networking websites such as Facebook and YouTube as evidence in disciplinary proceedings.
The facts of the case are as follows:
- Ms Gill worked as a customer services representative for SAS Ground Services. In her spare time she pursued acting and modelling. She created a Facebook page on which she uploaded regular updates relating to her acting and modelling pursuits.
- On 11 July 2009 - Ms Gill was signed off sick until 19 September 2009. This was due to a condition which required minor surgery. During her sick leave she did not make efforts to liaise with her employer concerning her progress and possible return date.
- Around 19 September 2009 - one of Ms Gill’s colleagues saw and printed out an entry from her Facebook page which found its way to her managers. The Facebook page showed that during the period she was signed off sick she had attended London Fashion Week on 15 and 19 September 2009.
The company carried out an investigation into Ms Gill’s actions, and began disciplinary proceedings. At the disciplinary hearing, Ms Gill explained her attendance at London Fashion Week was “essentially social” despite her Facebook page referring to her “auditioning 300 models” and choreographing a fashion show. Furthermore, there was also a YouTube video of an event at the fashion week, which clearly showed Ms Gill on the catwalk and presenting a bouquet of flowers to a designer. It transpired at the hearing that Ms Gill had also, during a previous period of unauthorised absence, been filming in India.
Her employers considered that Ms Gill’s involvement at the fashion events was not 'essentially social' and also considered the demoralising effect that Ms Gill’s actions had on her colleagues, who were aware that she was attending London Fashion Week whilst receiving full sick pay. Her employers, therefore, dismissed Ms Gill for gross misconduct. Ms Gill did not appeal the decision, but went straight ahead and lodged a claim for unfair dismissal at an employment tribunal.
The ET considered that Ms Gill's claim was brought without merit and held that the company had followed a fair procedure and were entitled to reach the conclusions it did based on the evidence they had gathered. The ET, therefore held that Ms Gill had been fairly dismissed, and her claim failed.
Best practice
Importantly, in this instance the employer did not actively trawl through an employee's personal Facebook / YouTube pages online. Despite the information being, to a degree, made public employers should not consider trawling through their employees’ Facebook / YouTube pages for evidence of dishonesty as both Data Protection Act and mutual trust and confidence issues will inevitably arise. It is, however, worth noting, as were the circumstances in this case, that it is legitimate for employers to use such evidence if it is presented to them. An employer looking to use this sort of evidence in a disciplinary hearing will need to treat it with greater diligence than it would more “conventional” evidence.
For further information and advice concerning unfair dismissal, disciplinary and the use of social networking sites please contact Gareth Edwards on 0117 314 5220.
This publication is for guidance only. Reliance should not be placed upon it and nor should action be taken, without obtaining advice in respect of the specific circumstances applicable. We will be pleased to provide such advice or assistance.
