Facebook: Solicitor had “impressive understanding of power of social media”
A law firm owner unfairly dismissed a departing solicitor he accused of trying to poach clients through Facebook, an employment tribunal has ruled.
It found that Terence Walsh had made up his mind to fire Lucy Crossman before the disciplinary hearing which he chaired, although she was not entirely blameless in how she handled the dispute over the Facebook account.
Ms Crossman joined Walsh Solicitors in Stockport in 2016 as a duty solicitor and head of criminal law.
She had, Judge Johnson in Manchester said, “an impressive understanding of the power of social media to market legal services” and asked if she could set up a Facebook page so that her former clients could see that she had moved.
The tribunal found that she used her personal Facebook account to do this – the firm had argued the account was its property – and was left to get on with it.
“We concluded that ultimately, the real brand here was Lucy Crossman the solicitor, as opposed to Lucy Crossman, a solicitor working for a particular firm or organisation.
“Nonetheless, this did blur the personal and the professional sides of Ms Crossman’s life and on balance of probabilities, this did mean that Walsh Solicitors clients would or at least could have a relationship with her on this platform.
“Inevitably, this had the potential for confusions to arise between the parties to the proceedings as to its ultimate control.”
In early 2021, after disputes over holiday and out-of-hours pay, Ms Crossman resigned. While working her notice, Ms Crossman received notification from Vodafone that her work phone number was going to be cut off and she decided to put her new personal telephone number on her Facebook profile.
This was, the tribunal concluded, “to ensure business continuity of her personal brand”.
Once Mr Walsh discovered this, he thought she was trying to poach his firm’s clients. He held a disciplinary hearing, a note of which showed how “there was a mutual suspicion which had been existing for some time”, Judge Johnson said.
He dismissed her for gross misconduct, but the tribunal held that he “displayed a fixed belief as to Ms Crossman’s wrongdoing without properly investigating the incident with an open mind”.
“The [firm] did concede that there was no evidence that Ms Crossman had diverted clients away from Walsh Solicitors. However, her unilateral changing of her contact details without discussing the matter with her employer gave her control over referrals of clients.
“We do not therefore consider that her actions were consistent with the behaviour of a reasonable employee and it would serve to undermine some of the trust and confidence that Walsh Solicitors could have in her.
“Nonetheless, this is a matter which could have been ameliorated by the parties engaging a sensible discussion about the Facebook accounts and eliminating any misunderstandings that might have arisen.”
This failure was primarily the fault of the law firm, the judge said.
The tribunal concluded that Mr Walsh genuinely believed Ms Crossman was secretly mobilising clients to move with her and so was guilty of gross misconduct – but it was “unable to accept” that this belief was reasonably held.
“While this might have been a genuine concern, it is unfortunate that no investigation was attempted so that questions could be asked so that Mr Walsh could be properly informed before making his decision.”
In any event, dismissal was “not within the range of reasonable responses”, even if a proper investigation had taken place.
Remedy will be decided at a future hearing but the tribunal said any award would be increased 15% for failing to follow the ACAS code in the disciplinary process but then reduced by 10% to reflect “modest” contributory fault on the part of Ms Crossman.
“We did find that while the cancellation notice for Vodafone was a genuine concern, we were not satisfied that she fully explored a mutually agreed and transparent solution to her work phone and social media use with her employer before resorting to the drastic action that she took regarding her contact details…
“This was not helped by her suspicion that she was being sabotaged by her employer and as evidenced by contemporaneous social media messages once she had given her notice of resignation.”
Ms Crossman also succeeded in complaints of wrongful dismissal, unlawful deduction from wages of £195 and not being permitted to be accompanied in part of the disciplinary hearing.
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