Following on from the article “NLRB Guidelines on Employer Social Media Policy” in the last edition of The Working World,1 in which John Shyer and Hayley Moore examined the NLRB guidelines for US employees, and their update on the guidelines in this issue, Kathryn Ramsden examines the development of law and good practice guidelines in the UK in the social media arena.
In a similar way to the US position, UK law and good practice around the fairness of an employer’s disciplinary sanction for employee use of social media comment is evolving. However, the mode of challenge in the UK to date has not related to employees’ collective bargaining rights or right to freedom of association but has instead centered on the right of UK employees not to be unfairly dismissed. The most significant best practice guidance for employers in the UK has been issued by the Advisory, Conciliation and Arbitration Service (ACAS),2 whose guidance is considered by UK Employment Tribunals when examining the reasonableness of an employer’s actions. ACAS emphasizes the importance of employers having clearly communicated specific guidance to employees on the appropriate use of social media before disciplinary sanctions for social media activities will generally be thought fair.
Experience Thus Far
There have been several research reports on the use of social media by employees in the UK, and the key theme emerging is that employers are generally behind the technology curve when it comes to formulating and revising policies on the use of work-related technology, bullying and harassment and disciplinary matters. The main areas in which UK employers have taken disciplinary action against employees for their use of social media appear to be (i) the posting of information/comment about the employer and/or employees’ work activities online, (ii) the amount of working time spent by employees using social media and (iii) the posting of information/comment about work colleagues online.
There have been relatively few cases reported in the UK given the explosion of social media in our personal lives, the press, and often our working lives as well. These cases have concerned the fairness of an employer’s dismissal of an employee for reasons connected to comments on social media sites.
In the UK, an employer may only dismiss an employee if (i) it has a reason that UK law prescribes as fair (in the context of the use of social media, the potentially fair reason will usually be misconduct), (ii) such reason is sufficient to justify dismissal and (iii) a fair dismissal procedure has been followed. Employees in the UK generally must have accrued one or two years’ service in order to bring an unfair dismissal claim (noting that the requisite level of service increased in April 2012 from one year to two years for employees whose employment commences on or after April 6, 2012). When an employee files a claim, the onus is on the employer to prove that it had a fair reason, dismissal was a reasonable response to that fair reason and it followed a fair process. In the absence of doing so, the employer is liable to sanction, commonly in the form of damages, which are generally capped at £85,200 (this cap changes every year).
The key UK cases have concerned (i) the dismissal of an employee who worked at London Fashion Week while absent from her employment on sick leave whilst receiving full sick pay, whose actions were discovered through social media postings, (ii) a soccer historian dismissed by Aston Villa Football Club for comments made by him about the club on a fan forum and (iii) a bar manager dismissed for posting social media site comments about some of the bar customers during her bar shift.
The case involving the dismissal of the bar manager is perhaps the most interesting. The employee had been subjected to verbal abuse and threats of physical violence from some customers at the bar, and as a result she expelled and “barred” them from returning — action subsequently supported by her employer. She also made social media site posts about the customers during working time to her group of social media site contacts, which included other regular customers of the bar. She was dismissed as a consequence of these comments. In considering her unfair dismissal claim, the Employment Tribunal focused on the content of the employer’s applicable policies, whether those policies were drawn to the employee’s attention, whether those policies were backed up by training, whether postings were made “in the heat of the moment” in difficult circumstances when there was no other forum to “let off steam” (which was not the case here), whether the employee had sought the advice of a supervisor and the thoroughness of the employer’s investigation of the incident. In this case, the Tribunal concluded that she had been fairly dismissed.
What Employers Should Do
ACAS has produced guidance on managing the impact of social media, and its key recommendations are that employers must set clear guidelines on the appropriate use by employees of social media. While ACAS has not gone as far as the NLRB in prescribing that policies should not restrict the rights of employees to express a collective grievance, ACAS does caution: “Many employees see use of social media in the wider context of freedom of speech. Employers might be seen as trying to gag employees from expressing personal views if they are over proscriptive about the use of social media channels.”
ACAS recommends that employers put in place clear policies on the use of social media by employees, including whether that use is restricted to work purposes. Such policies should clearly state whether the employer will monitor employee communications involving social media, and, if so, such monitoring must be in compliance with data protection and monitoring legislation. Social media policies should tie-in with existing policies on disciplinary matters, giving examples of what amounts to misconduct and what misconduct is considered so serious by the employer as to justify immediate dismissal without notice or pay in lieu of notice. Most significantly of all, ACAS recommends that such a policy is drawn to employees’ attention and supported by training.
Collective Rights: The Next Battleground?
Although disputes concerning the reasonableness of an employer’s sanctions for social media usage in the UK have not yet turned to the arena of collective rights (as they have done in the US), collective rights may well come under scrutiny in the future, particularly as more UK employers introduce and refine social media policies that explicitly provide them with the power to impose disciplinary sanctions in the sphere of individual employment rights, such as unfair dismissal. It is entirely possible that, if claims for unfair dismissal in relation to sanctions for the use of social media by employees are frustrated by well-drafted employment policies, employees may argue that the curtailment of their use of social media by their employers limits their freedom of expression and their ability to express collective frustration.