Facebook, LinkedIn, Twitter, YouTube, Instagram, Tumblr…. Employers are increasingly having to grapple with posts on social media by their employees which they find unacceptable, perhaps because they cast them in a bad light and damage their reputation, insult or harass fellow colleagues, clients or customers or breach confidentiality.
In the UK, employees are protected from being unfairly dismissed (usually provided they have two years' service). Employers must have a fair reason for dismissal, and they also must act reasonably in treating that reason as sufficient to justify dismissal. This generally means only deciding to dismiss after an investigation and weighing up all the alternatives.
Getting it wrong could mean claims in the Employment Tribunal, with all the associated costs. Cases involving email and social media often grab headlines and can also go viral—like the email a lawyer sent to his secretary asking for £4 to cover a dry-cleaning bill after she spilled tomato ketchup on his trousers.
Decisions in this area can leave employers baffled. The Employment Tribunal considers all the individual circumstances of each case, which makes it hard to predict who will win. Many of the cases in which employees have won unfair-dismissal claims might surprise employers, for example:
- Mr. Mazur,1 who was dismissed after posting a "selfie" of himself on Facebook wearing an Osama bin Laden mask in his employer's laboratory, where a fragment of the employer's logo could be seen in the photo; and
- Ms. Walters,2 the manager of a supermarket, who posted on Facebook about her customers that "hitting them in the back of the head with a pic axe would make me feel far more happier hehe."
There are also cases on the other side of the line, where dismissal was justified. For example, Crisp v. Apple Retail,3 where Mr. Crisp put disparaging comments online not only about his employer, Apple, but also about its products; and another case, Teggart v. TeleTech UK Limited,4 where Mr. Teggart posted vulgar and coarse comments about the promiscuity of a female colleague on Facebook.
These decisions show that an offensive or inappropriate post may entitle the employer to dismiss, but it will not automatically do so. The Employment Tribunal will consider the whole picture and ask questions like the following:
- How bad were the comments, and what were they about?
- Was the offending post put up during working time?
- Could the employer be identified?
- Was there a real risk to reputation?
- How many "hits" or "likes" did the post receive?
- Was the profile public or private?
- Did the employer tell the employee that such conduct could lead to dismissal, and how?
There is often a push internally that someone who has been bad-mouthing the employer online should lose their job. Employers will need to realize that a knee-jerk reaction may expose them to claims and negative publicity, and that they will have to look into the situation and consider all options, however much it sticks in the throat to do so.
The good news is that there are steps proactive employers can take. First and foremost—manage expectations. While the decisions in this area may not be consistent, one issue which comes up time and time again is the need for employers to tell employees what they can and can’t do, if they want to be able to take action.
As a first step, this means having a Social Media Policy. This must be communicated to the workforce, and training on it should engage the workforce in protecting the corporate image and reputation. Such a policy should:
- Be tailored to the business;
- Cover work and personal use of social media;
- Give meaningful examples of what is and isn’t acceptable;
- Give guidelines for responsible use;
- Explain that breaches may result in dismissal.
A clear policy, with a message that is regularly communicated and enforced, has the aims both of preventing issues from arising, and of putting the employer in the best position to defend itself against claims, if it has to.