Employers must ensure staff know the rules for digital comms

As appeared in www.buzplus.ie on 27 April 2016 – The recent Employment Appeals Tribunal’s (EAT) decision on an unfair dismissals case taken by former Wagamama employee highlights the dangers of social media in the workplace. The EAT decision is under appeal but it’s still a stark example of what can happen when personal and professional worlds collide on social media. The internet has revolutionised the workplace but there can be as many negatives associated with it as positives.

This is particularly the case when an employer’s corporate reputation can suffer damage if an employee either denigrates it on social media or does something foolish in the eyes of the world.

The EAT recently refused to entertain an unfair dismissal claim by an employee who filmed himself snorting cocaine in a bathroom wearing a T-shirt with his employer’s name emblazoned across the front.

The employee worked for Wagamama and commenced unfair dismissals proceedings against the company after he was given a choice: resign with some dignity or face disciplinary proceedings.

The EAT does not seem to have been keen on the manner in which this ultimatum was delivered but that wasn’t enough to sway them in favour of the employee.

The Irish courts and tribunals have had to grapple with these issues many times in the last 15 years or so. It’s now generally accepted that particularly egregious conduct on social media can justify a decision to dismiss.

Tricky Balance

The trick, as always, is finding the right balance – for every case in which the tribunals have endorsed a dismissal, there is one in which they have held back from doing so. Identifying clear principles to guide employers is not always easy.

By way of example, the tribunals have alternately upheld dismissal decisions in cases where an employee criticised managers but, on the other hand, have ruled that a dismissal for disseminating pornography was not fair.

Perhaps the most high-profile case in recent years was the High Court decision last year taken by a bank employee, James Reilly. The court delivered a very detailed judgment that meticulously examined the history of the case and set out some clear principles that serve as a very useful template for employers who are considering a dismissal for abuse of social media.

In the Reilly case, the dismissal was struck down and Mr Reilly was reinstated as an employee of the bank – a rare occurrence in itself.

Core Principles

As referred to, it’s possible to derive some policies from the decided cases to date. The following are some core principles that employers need to understand:

  • A policy dealing with the use of social media, email and the internet is absolutely essential and an employer that doesn’t maintain such a policy will find it much more difficult (and sometimes impossible) to take effective disciplinary action against an employee.
  • Merely implementing a policy isn’t enough; you’ll still encounter difficulties if your policy merely gathers dust on a shelf and isn’t reviewed and updated periodically to take account of changes in the workplace.
  • Among other things, if an employer suddenly decides that it is going to adopt a stricter approach to use of social media (or even a ‘zero tolerance’ approach), the policy will have to be updated to reflect this and employees will have to be put on notice of the change.
  • Employers need to be consistent. A striking feature of the Reilly case, which the judge particularly commented upon, was that the practice of employees swapping emails containing questionable content was by no means uncommon. It’s clear that the judge felt it wasn’t fair to single out one employee for particular treatment.
  • The degree to which the employer has actually suffered damage is also important. In a significant UK case a few years ago, the dismissals were overturned when the tribunal was satisfied that very few people had actually viewed the video that the employer objected to.

Fair Procedures

As always in dismissals, fair procedures are key. Also, if you’re going to suspend an employee for alleged abuse of social media, you have to be consistent – you can’t suspend selectively. You also need a good reason to suspend at all.

There’s no doubt about it – these issues can be challenging for employers. There is sometimes a temptation to react in anger if an employee does something particularly stupid on social media and employers may be tempted to make examples in individual cases.

These temptations should be resisted – if a policy applies across the board, it has to be applied objectively and fairly, and it is never a good idea to try to scapegoat individual workers.

At the same time, however, the law isn’t blind to the possibilities of an employer’s reputation being damaged (or the relationship of trust between the parties being irrevocably broken). The trick, as always, is finding the balance. Having a clear policy in place will do a great deal to vindicate an employer’s position, as will a balanced approach.