The world of social media has exploded in the past decade and connects billions of people across the world every day. Whilst platforms such as Facebook, Twitter and LinkedIn can be valuable marketing and communication tools, social media comes with its own unique challenges for an employer. Employees using social media inside and outside of the workplace can lead to problems for a business. Inside, the workplace, for example, employees’ use of social media could be effecting productivity or the standard of work produced.
Careless use of social media can have a major effect on a business as this could damage the employer’s reputation by the negative or derogatory comments that employees post on social media pages and also lead to disciplinary action being taken against the employee for breach of social media policy. If an employee’s comments damage the Company’s reputation or are intended or likely to breach the implied term of mutual trust and confidence required for the employment relationship to work, then it is likely that he or she has committed a conduct offence which may or may not warrant disciplinary action.
Businesses should have disciplinary rules and procedures in place via a coherent Social Media Policy to deal with any issues that arise. An employer should treat improper use of social media as it would any other type of alleged misconduct. This would involve an investigation and consideration of suspension or other precautionary action followed by disciplinary action if appropriate. An employer should also take into account the employee’s disciplinary and general record, length of service, action taken in any previous similar cases, the outcome of the investigation and the employee’s explanation, and whether the severity of the intended disciplinary action is proportionate and reasonable in the circumstances. The severity of the disciplinary action will depend on the nature of the comments and the actual or potential impact on the business. For example, derogatory comments made openly on an employee’s Facebook profile, with public access, are likely to warrant more severe punishment then comments made via the website as a private message between an employee and a friend.
Employee’s private lives extend into the workplace and employees are entitled to an expectation of privacy therefore employers have to be careful when monitoring employees and have regard for an employee’s competing right to privacy, as such, monitoring must be undertaken appropriately and in accordance with relevant legislation, for example, Data Protection Act 1998, Human Rights Act 1998 and Regulation of Investigatory Powers Act 2000. Covert monitoring may well be a breach of the Article 8 European Convention on Human Rights (Right to private and family life) and employees may raise Article 10 also (freedom of expression). In order to be able to justify covert monitoring it is better that an employee is informed that monitoring will take place, typically via IT/Social Media Policy.
To avoid conflicts over privacy issues, a Social Media Policy should identify parameters by making employees aware of the boundaries and the employer’s expectations. A Social media Policy also protects the business against liability for the actions of the employees and ensures they comply with the law on discrimination and data protection. These policies should:
- Specify to what extent employees can access such sites, and when, including business and personal use.
- Make clear that employees should not disparage customers, suppliers, employees, and so on, on such sites.
- Make clear that employees should not disclose confidential information or trade secrets.
- Clarify the consequences of any breach.
- Confirm that the employer reserves the right to monitor employees’ use of email and internet, including access to social media sites.
- Make clear that employees should not hold themselves out as speaking on behalf of the company unless authorised to do so.
Recent case law provides useful indication of the approach that tribunals take to the use of social media. In Gosden v Lifeline, the tribunal held that the Claimant had been dismissed fairly for sending an offensive email from his personal computer to a former colleague’s personal computer on the grounds that he acted in a way which could damage the employer’s reputation. Similarly in Preece v Wetherspoons, a pub manager posted derogatory comments about two abusive customers on Facebook whilst at work. The employee thought her privacy settings were private but her comments could in fact be viewed much more widely, including by family members of the customers in question. Wetherspoons had a clearly worded IT policy which reserves the right to take disciplinary action should the contents of any Facebook page “be found to lower the reputation of the organisation, staff or customers and/or contravene the company’s equal opportunity policy”. The employee’s dismissal was found to be fair in these circumstances.
Conversely however, in Stephens v Halfords the Tribunal found that the dismissal of the Claimant, who had breached company policy by creating a Facebook page where derogatory comments about the company were made, was unfair and outside the range of reasonable responses because of the employee’s clean disciplinary record, his clear acknowledgement that his actions were wrong and his actions in removing the page as soon as he realised that it breached company policy. An employer’s social media policy must be clearly worded if the employer wishes to be able to rely on a breach of it in order to discipline or dismiss an employee. In the case of Grant and Ross v Mite Property Services UK Limited, two sisters were dismissed for excessive use of social media sites including Facebook. The employer’s IT policy permitted the employees to access the internet “outside core working hours”. The employment tribunal held that the dismissals were unfair because the policy was unclear about what “core working hours” meant.
Cases such as Grant, Ross and Stephens are a reminder that disciplinary sanctions must be proportionate to the offence. Also, even where there is a clear breach of company policy, employers will still need to act reasonably when considering disciplinary action and a breach of a social media policy is no exception. Employers need to conduct appropriate investigations to reach a fair and reasonable decision. Employers need to be alive to the potential problem as social media networking is here to stay. Due its popularity and high demand it is a reasonable assumption that almost every workplace with be affected in some way by these issues in the near future. A clear, concise and unambiguous Social Media Policy is essential for any diligent employer.
McCay Solicitors are Employment Law specialists, should you wish to speak to McCay Solicitors regarding this article or any other legal matter please contact by telephone on 02871371705, email gareth@mccaysolicitors.co.uk or visit our website at www.mccaysolicitors.co.uk. This article does not constitute legal advice and McCay Solicitors accept no liability for its content.