Dealing with improper use of Social Media
08/05/2012
Whilst social media can create opportunities for business, the associated risks are becoming clear as more and more employees turn to social networking sites such as Facebook and Twitter to “let off steam” about their jobs.
If an employee posts derogatory comments about their employer on a social networking site, and the comments damage the employer’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 the employee is guilty of misconduct, which may or may not warrant disciplinary action.
Most businesses will have a set of disciplinary rules and procedures which set out standards of conduct expected at work and explain what is considered to be unacceptable behaviour. With the increasing use of social networking both in and outside work, many employers are also protecting themselves by putting in place a clearly-worded social media policy outlining appropriate use of social media both during and outside working hours.
Recent case law provides a 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 JD Wetherspoons, the tribunal held that the claimant had been fairly dismissed for gross misconduct after using offensive language on Facebook about her customers in breach of the employer’s email and internet policy.
Conversely however, in Stephens v Halfords the tribunal found that the dismissal of the claimant, who had created a Facebook page where derogatory comments about the company were made in breach of its policy on social networking sites, 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 (demonstrated by his apology) and his actions in removing the page as soon as he realised that it breached company policy.
Whilst employers will welcome decisions by tribunals that accept that the damage caused to a company’s reputation by an employee’s indelicate comments on a social networking site can lead to a fair dismissal, cases such as Stephens are a reminder that disciplinary sanctions must be proportionate to the offence. Furthermore, even where there is a clear breach of a company policy, employers will still need to act reasonably when considering disciplinary action and a breach of a social media policy is no exception to this.
To avoid conflicts over privacy issues, parameters must be clearly outlined. Employers should ensure that internet usage policies include statements regarding employees posting derogatory comments, sending offensive emails, or similar communications or activities, inside or outside the workplace and that disciplinary action could result in the event that they do. The cases above also reiterate the importance of dealing with disciplinary issues appropriately, with the onus being on employers to conduct appropriate investigations to reach a fair and reasonable decision.
Whatever the problems, it looks like social networking is here to stay. With over 800 million active users worldwide and over 700 billion minutes per month being spent on Facebook alone, it is a reasonable assumption that almost every workforce will in some way be affected by these issues over the coming years. Employers are therefore strongly advised to take a proactive stance by implementing a clearly-worded social media policy.
Should you require further information on any of the issues raised in this article, please contact:
Amanda Magee, amanda.magee@tughans.com, Telephone: 028 9055 3300.
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