Gary Lineker isn’t so special. He might be a millionaire celebrity whose tweet criticising the government led to a crisis at the BBC and a national argument. But in being suspended from his job for something he’d posted on social media, he actually experienced something that could happen to almost anyone.
Even if your employer doesn’t have the kind of political impartiality rules the BBC has, they can still limit what you say on social media. And in some cases, you can even be dismissed from your job because of your online conduct.
In today’s digital age, it is likely that your employment contract contains a social media policy. Failure to adhere to that policy, could at best get you in trouble with your boss, and at worst, leave you unemployed for breach of contract. Here’s what you need to know.
For your employer to find you in breach of their social media guidelines, the policy must be robust, and clearly articulate (with examples where possible) of what you cannot say. It must also clearly identify who is subject to the policy.
Failure to have a clear and robust policy leaves you with grounds to appeal. If you have been dismissed, you could argue unfair dismissal and take the case to an employment tribunal.
This was made clear in a 2011 case involving a manager at a Wetherspoons’ pub, who was fired after posting several offensive comments about customers on her Facebook page. The daughter of one of the customers spotted the comments and complained to Wetherspoons.
The employee was later dismissed for gross misconduct. An employment tribunal upheld her dismissal, finding that Wetherspoons had a clear and robust social media policy in place, which was highlighted in the employment contract.
What about private social media accounts?
Even if you post on a private social media account, and don’t specifically name your employer, they may still be within their right to limit what you, as an employee, post.
In another 2011 case, an employee in an Apple store was fired after posting derogatory comments about Apple, including mocking the company’s slogan, on his private, personal Facebook page.
An employment tribunal found that he was fairly dismissed, despite not mentioning in the posts that he worked for Apple, and deleting the comments soon after posting them (it had been brought to his attention that his manager was not happy). He argued that only his Facebook friends were able to see the comments.
But in the employment tribunal’s view, it should have been obvious to the employee that he was subjected to a social media policy. Apple had provided training courses on social media use, specifically stressing the importance of protecting the company’s image.
What about comments that are not about my employer?
In a 2014 case, an employee of video game retailer Game made several offensive comments on Twitter about an array of topics, including golfers, the police and the NHS. Another employee brought these comments to the attention of his employer. Though offensive, none of the comments made were about or aimed at Game, and all tweets were sent outside of work hours.
But Game dismissed the employee, deeming his behaviour gross misconduct, particularly as a senior staff member. Initially, an employment tribunal found in favour of the employee, concluding that he had been unfairly dismissed, deeming the dismissal an overreaction. For any dismissal to be considered lawful, including those related to social media conduct, employers must act reasonably.
The decision was later overturned by the employment appeals tribunal, who gave significant weight to the fact that the employee’s Twitter page was publicly available, and that he followed other employees and Game shops.
The tribunal did note that:
Generally speaking, employees must have the right to express themselves, providing it does not infringe on their employment and/or is outside the work context.
But in this case, the tribunal found that Game had a social media policy in place, and that the employee’s posts amounted to gross misconduct, as they could have brought the company into disrepute.
While there have likely been more recent examples than the three above, employment cases are not often publicly reported. Most companies will ask for confidentiality clauses to be included in an employment tribunal, especially if such comments could tarnish the business.
Freedom of expression
In the UK, everyone has the right to freedom of expression, even in the course of our employment, as protected under Article 10 of the European Convention on Human Rights. But this is not an absolute right, it can be restricted and limited in certain situations.
That’s not to say your employer can restrict everything you say. Even when a case comes before an employment tribunal, weight must be given to freedom of expression.
But these and other cases make clear that, provided a robust social media policy is part of the terms and conditions of your employment, your employer can limit what you put online – even when you think it is private.
Employers & Employees should not hesitate to get in touch with McCay Solicitors for further information on; 02871 371705
(Article By Somerset Live Online)