Legal expert Arwen Makin assesses a recent case involving Facebook comments about Prince George, and offers tips on what to include in social media policies
As the royal wedding of Prince Harry to Megan Markle in May draws near, and there has been much commentary on social media about two councillors’ request for rough sleepers to be cleared from the streets of Windsor, it’s an apt time to review a case heard recently by the Employment Appeal Tribunal (EAT).
Gibbons v British Council involved social commentary made on Facebook regarding Prince George on his third birthday. The claimant, Angela Gibbons, brought claims of unfair dismissal, wrongful dismissal and belief discrimination following her dismissal. She was unsuccessful in all three claims.
Gibbons v British Council
Ms Gibbons was employed by the British Council, a charity which describes itself as the United Kingdom’s international organisation for cultural relations and educational opportunities, and has the Queen (Prince George’s grandmother) as its patron. Gibbons held a senior role as head of global estates. In July 2016 she commented on Facebook, underneath a photograph of Prince George, “White privilege. That cheeky grin is the innate knowledge he’s royal, rich, advantages and will never know ANY difficulties or hardships in life”. She went on to describe Prince George as a symbol of “white privilege”, and expressed her “socialist, atheist and republican opinions”, saying she does not “believe the Royal Family have any place in a modern democracy, least of all when they live on public money.” The comments were shared widely and a great deal of publicity followed.
The British Council wasted no time in issuing a statement: “This comment was made on a private social media account. It has absolutely no connection to the British Council and does not represent our views and values.” The statement continued: “The British Council expects the highest standards of our staff and in accordance with our code of conduct we have started disciplinary procedures with the individual concerned.” Ms Gibbons was suspended immediately and, despite making an apology to Kensington Palace, was dismissed after an investigation.
There was an issue as to whether the comments were work related. Ms Gibbons argued that her Facebook comments were private and only viewable by her friends, and her profile did not name the charity as her employer. The British Council argued that if anyone could easily work out from an online search that she worked at the British Council, then it followed that, as a senior employee, she should have known that such people could have found her statements highly controversial, due not only to the work that the charity did with children, but because of the royal patronage.
Claim for unfair dismissal and harshness of sanction
The tribunal considered that the British Council held a genuine belief that the claimant was guilty of misconduct, which undoubtedly caused substantial damage to their reputation. The tribunal acknowledged that this was a slip of judgment rather than an intention to cause such outrage, and they recognised that some employers may not have taken such drastic action. However, this was not the test to be applied. The tribunal found that it could not be said that the decision to dismiss was one that no reasonable employer would have made, and the decision was therefore not unfair. They also found that Ms Gibbon’s actions amounted to gross misconduct, so the claim for wrongful dismissal also failed because she was not entitled to notice pay.
Claim for belief discrimination (philosophical belief)
The philosophical belief upon which Ms Gibbons sought to rely was that the UK should not be a monarchy but a republic. The EAT set out helpful guidance as to what constitutes a philosophical belief in the case of Grainger plc and others v Nicholson 2009, where the belief in question was climate change.
The belief must be genuinely held. While it is not the tribunal’s function to assess the “validity” of a belief by some objective standard, evidence (including cross-examination) may be needed to establish that the belief is genuine.
It must be a belief, not an opinion or viewpoint based on the present state of information available. It must be a belief related to a weighty and substantial aspect of human life and behaviour. It must attain a certain level of cogency, seriousness, cohesion and importance.
Following the guidelines, the tribunal found that Ms Gibbons’ belief was indeed a genuine belief against which its holders should be protected from discrimination. She brought claims of direct and indirect belief discrimination. Both failed.
The claim for direct discrimination failed as the tribunal found that it was not the expression of her republican belief that led to the British Council concluding that she lacked judgment. Rather, it was the way in which she chose to communicate that belief, namely attacking a three-year-old child on social media.
Her claim for indirect discrimination also failed. While the tribunal found there was a provision criterion or practice in place (not to express political views in a public forum where the person holding those views could be associated with the British Council) it held that if this did place Ms Gibbons and republicans at group disadvantage, it would be justified as being proportionate to a legitimate aim (being an employer’s desire to protect its reputation).
Social media guidance for employers
This case delivers some interesting and useful reminders about the “reasonable employer” test, harshness of sanction considerations, the importance of considering whether conduct outside of work should be subject to disciplinary processes, and the importance of reputation. It also provides an opportunity to revisit social media policies.
To protect both employers and employees alike, a good social media policy should include:
- When personal/business use of social media is permitted, and guidelines for such use
- How social media use will be monitored
- An explanation that social media should never be used in a way that breaches any other policies
- Examples of inappropriate use, such as, for example, breaching confidentiality, being discriminatory, bullying, and defamation of the employer, clients or suppliers
- Any policy should state that employees must not post disparaging or defamatory statements about the organisation or contacts, directly or indirectly
- A statement that the employee is personally responsible for their own social media
- Details of any potential disciplinary action on breach of the social media policy