Socially unacceptable in port environs

It has since been reported that the employee who filmed the video has had his employment with the terminal terminated, highlighting the sensitivity of social media use in restricted port areas.

As a matter of English law, there are five potentially fair reasons for dismissing an employee under the Employment Rights Act 1996: misconduct; capability; statutory obligations; redundancy; and “some other substantial reason of a kind such as to justify the dismissal of an employee”. Distributing a film of port operations could constitute misconduct in certain circumstances.

The definition of misconduct is intentionally broad, although employers would usually include examples of misconduct in their internal disciplinary rules. It is not necessary to show that an employee’s conduct was dishonest, although “gross” misconduct should be established in order to dismiss an employee immediately. Gross misconduct would usually refer to serious, potentially criminal, actions such as theft, physical violence or serious insubordination. A fair procedure would still need to be followed, and the employee would need to be given an opportunity to respond before a dismissal decision is taken.

Social media use creates new employment issues, where an employee’s obligations to their employer could extend to their use of social media out of work hours. The UK Employment Tribunal has however not provided specific guidance on the misuse of social media and its relation to misconduct dismissals. In each case, it would be relevant to consider the existence of a social media policy, the nature and seriousness of the misuse in question, any previous warnings to the employee and any actual or potential damage to the port’s business or its reputation.

Due to the sensitive nature of port operations, port byelaws frequently prohibit filming within port limits without permission. It is therefore highly likely that any unauthorised filming or photography by an employee within port limits could be considered to be a misconduct offence. Under English law it is not clear whether this would amount to gross misconduct, although employees should be reminded of their obligations in relation to social media, and employers should adopt clear social media policies which should be communicated to their workforce.

Lizzie Gray is an associate at HFW (www.hfw.com).