Partner Article

Employment and social media: a troubled relationship

The impact of social media is now clearly visible in our everyday lives. In just a short space of time it has completely taken off, and some might say, taken over. Facebook, Twitter and LinkedIn are among the most popular sites, and with the number of worldwide Facebook users reaching 1 billion this year (the guardian.co.uk, Thurs 4 Oct 2012), few people have escaped its appeal.

In turn, this means that social media is now invaluable to many businesses as a marketing tool, which they cannot ignore. There is no doubt that social media provides a great opportunity for companies to get positive images of their business into the public domain. However, with opportunity comes challenge, and social media is not without its issues, and in an employment context these can be a problem. The question is how do employers deal with these? The blurring of boundaries between what is private and public, which social media appears to have caused, can make things difficult…

Acas hits the nail on the head when it highlights social media’s distinguishing characteristics as being: reach (in terms of numbers), accessibility (in terms of required cost and skill), immediacy (in terms of delivery), and the fact that it is more or less permanent. With these characteristics come associated risks.

Employees behaving badly…

Misconduct involving social media may involve: the exposure of an employee’s inappropriate work-related conduct, for example through posted photos or videos; unauthorised absence; derogatory comments employees make about their employer or workplace; or other comments to which an employer would otherwise object.

Generally employers should treat misconduct involving, or exposed through, social media, in the same way that they would any other misconduct. If misconduct is serious, and dismissal is contemplated, the fairness of such a decision will, as usual, come down to the question of reasonableness.

For example, if the issue is the potential damage an employee’s actions could do to an employer’s reputation, it is important that the risk of such damage is real. In the case of Whitham v Club 24 Ltd t/a Ventura ET Case No.1810462/10, the comment, ‘I think I work in a nursery and I do not mean working with plants’, which an employee made about her workplace on Facebook, was found to be “relatively minor”, and there was nothing to suggest that the employer’s relationship with a key client had been harmed or jeopardised as a result. In light of this, her dismissal was found to be unfair. The employer in this case had been concerned that its relationship with an important client had been adversely affected as a result because her colleagues were also employees of that client.

Workplace gossip or routine criticisms of an employer are ordinarily unlikely to be serious enough to entitle an employer to dismiss an employee, but this does depend on fact and degree.

Bullying and harassment can also be a problem. Abusive and offensive comments made by an employee about a colleague may constitute harassment under the Equality Act 2010. Employers should be alive to behaviour which could breach their anti-bullying and harassment policies, especially when employers can bear the liability for such conduct. In the case of Teggart v Teletech UK Ltd IT Case No.704/11, the Northern Ireland tribunal held that the dismissal of an employee, for making vulgar comments about the promiscuity of a female colleague on his Facebook page, was fair. Although the comments did not bring the employer’s reputation into serious disrepute, the employee’s harassment of his colleague was sufficiently serious to warrant dismissal for gross misconduct. This case also highlights the importance of ensuring you have the right allegation of misconduct from the start. It is likely that a dismissal for being guilty of bringing the company into disrepute would have been unfair in this case.

It is also important to note that just because conduct has taken place outside of the workplace, it doesn’t necessarily follow that disciplinary action cannot be taken. Where conduct is not private in nature, and there is a link with the employer, there may be a case for disciplinary action. Even where things appear private at first, things can change. For example, in Gosden v Lifeline Project Limited ET Case No. 2802731/09, an employment tribunal accepted as fair the dismissal of a drugs welfare worker for sending an email of racist and sexist content from his home computer to the home computer of a friend and former colleague. This was because the email was then forwarded by that friend to a colleague at HM Prison Service, one of the biggest clients of Lifeline Project Limited. The email was of a chain nature, and clearly told recipients that they had a duty to pass it on.

This case also touched upon the issue of readership. The tribunal found that the chain nature of Mr Gosden’s email meant that he could not reasonably have expected it to have remained private between himself and the friend he sent it to.

Employees might argue that comments are limited to certain people they are connected to online. There is no certain answer as to what potential readership might warrant dismissal, but employment tribunal decisions so far indicate that comments posted on social media will not attract privacy protection, For example, in the unreported case of Crisp v Apple, the tribunal found that, despite the claimant having “private” Facebook settings, there was nothing to prevent his friends copying and passing on his comments. For this reason he was unable to rely on the right to privacy contained in Article 8 of the European Convention on Human Rights (the Convention).

It is the nature of social media which means that allegations of misconduct, which would normally have gone unnoticed, now come to employers’ attention. This is because, instead of letting off steam with friends down the pub at the weekend, there is now a readily accessible medium for employees to vent their frustration after work, if not immediately. Once made, those comments are public, and with more and more employees connecting with their work colleagues through social media, these are far more likely to make their way back to management.

So, should employers go out looking for bad behaviour? Despite the findings of recent cases, employers should not assume that just because information is publicly available, that an employee has no right to privacy. In relation to personal conduct and social media, the TUC’s Worksmart website makes the point that, ‘(employers) wouldn’t follow an employee down the pub to check on what they said to their friends about their day at work. Just because they can do something like this online, doesn’t mean they should’. In most of the employment tribunal cases, the misconduct has come to an employer’s attention via another colleague who has informed management.

It is important to remember that, when considering an unfair dismissal claim, an employment tribunal must interpret UK legislation in a way which is consistent with the Convention. The question as to whether an employer has acted reasonably in treating an employee’s conduct as a reason for dismissal raises two key rights under the Convention: the right to privacy (Article 8); and the right to freedom of expression (Article 10). If an employer dismisses an employee in breach of those rights, dismissal could be disproportionate and therefore unfair.

It is also important to remember that, if employers routinely review data posted by employees on social media using the employer’s IT equipment, such as laptops and smartphones, they are likely to be processing the data of individual employees, and therefore engaging the principles of the Data Protection Act 1998. These should always be considered.

However, although human rights should be borne in mind, recent cases indicate that the question as to whether or not an employee has, for example, retained their privacy is unlikely to be the deciding factor, as opposed to whether the decision to dismiss is proportionate to the alleged misconduct, bearing in mind factors such as their role and the nature of their employer’s business.

Going forward as “friends“?

So what can employers do to best protect their business interests and relationships? Employers should do their best to ensure employees understand that anything they post online will be public, and that their online behaviour can have consequences.

What about a blanket ban? This may be appropriate, and could also deal with any issue employers are experiencing in relation to excessive use during working hours and productivity, but it is important to bear in mind that this will not deal with the problem of “out of hours” activities. It is likely to be unpopular, and could prevent a company using the benefits of social media. It may not therefore always be the answer.

Employers could seek to prevent employees using social media to express their complaints, by: providing a sounding board or other internal resources to enable employees to vent their opinions; ensuring they use appraisals or reviews as a private forum for employees to talk about problems; and reminding employees of their internal grievance or support procedures.

Overall, a clear social media policy can set out what is and isn’t acceptable, giving examples in order to avoid misunderstandings. If created, this should be implemented and clearly communicated to staff. It may not stop the problem but it could make the taking of disciplinary action more straightforward, whilst enabling employees to continue to see the business benefits that social media can bring.

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