Facebook thumbs downEmployment Law cases can relate to all manner of things: sexist make-up policies, discriminatory Secret Santa gifts and, in the case of one Canadian law suit, a claim by employees for ‘psychological torture’ due to the employer playing Christmas songs on loop from November onwards.

I’ve recently read a case worthy of joining this list – namely, the ‘Facebook meat advertisement’ case. This is the case of Hayward v Noel Chadwick Limited heard in Liverpool Employment Tribunal, which published its judgment in March 2017.

As some readers in the Wigan area may know, Noel Chadwick Limited (“NCL”) is a typical local butcher shop which heavily relies on local reputation and footfall in the Standish area. The only real ‘online service’ provided is an email service requesting local deliveries.

In this case, Mr Hayward sent a public Facebook message to his then-girlfriend about the cost of packages of meat from an online meat company. The company wasn’t a competitor and operated in a different manner (i.e. online-only and a wholly different types of product). Put plainly, the only similarity was that they sold meat (in the same way that Dacia and Ferrari are similar because they sell cars, for example – it is the same product but very different ends of the market wihtout being ‘true’ competitors competing for the same customers).

Unfortunately, the Directors of NCL considered the post to be an “advertisement”. They also argued that they thought the post was made in bad faith and was “malicious”. So what did the Employment Tribunal decide?

Employment Judge Robinson disagreed in a blunt and direct judgment, mainly due to the followng points:

(1) NCL didn’t have a social media policy.

(2) Mr Hayward had a clean record and had no previous formal warnings for social media use.

(3) The post didn’t constitute an ‘advertisement’, wasn’t ‘malicious’ and, rather, “even if his actions are seen as a little disloyal, that disloyalty is so minimal as not to even register as something deserving of criticism never mind sanction“.

(4) The post didn’t cost NCL any money, rather “it is fanciful of [NCL] to suggest that there would be any financial loss to them with regard to other people seeing that [Facebook] post.

(5) There was no formal meeting invitation, Mr Hayward wasn’t allowed a companion to the meeting, he wasn’t warned that the meeting could result in formal sanction (including dismissal), he wasn’t provided with a letter confirming the decision to dismiss and, despite Mr Hayward’s request for an appeal, this wasn’t granted.  All of these factors contributed to Employment Judge Robinson applying a 25% increase to Mr Hayward’s compensation due to breaches of the Acas Code of Practice on Disciplinaries.

This case is a strong reminder of the need to avoid automatically overreacting to social media posts which aren’t 100% ‘loyal’ to their employer. Yes, it didn’t look fantastic to recommend another provider, but the key question to the employer should have been: “Did the post financially damage our business and/or reputation?” Looking at the bigger picture should have led to the employer concluding “no” due to the company in question being online-only and not being a direct competitor, whilst NCL relied on local custom and wouldn’t, in reality, be affected by a post seen by a small number of people online (when their reputation was very much based on community word-of-mouth and footfall).

An equivalent situation would be an Asda employee going into Tesco whilst wearing their Asda uniform and doing a weekly shop (and being photographed by a member of public and this being posted online). Could their act be seen as act slightly ‘disloyal’? Yes. Should it result in any kind of formal action? No. At very most, a very informal chat should be considered, if even that.

The three main things to take from this case? Have an up-to-date Social Media policy (this would have helped NCL to some extent), follow a fair process and obtain legal advice on the social media ‘breach’ before acting. Failing to do so may result in the dismissal decision being placed on the butcher’s block by a blunt Employment Judge (with the judgment being googleable by the public going forward)…