Recently, there has been a growth in cases concerning employees' use of social media outside of work, which has impacted their work. These cases assist employers in knowing when it is appropriate to raise outside conduct with the employee.
Generally what an employee does outside of work is of no concern to the employer unless in some respect it affects the employee (or could be thought to affect the employee) when he or she is at work.
An employee's conduct outside of work, which can cause concern for the employer, might range from anti-social behaviour arising from drinking, such as fighting or arguing, to making offensive or inappropriate remarks on social media.
It is the last, which most often surprises the employee, that their employer can be aware of or concerned about their private social media use. I don't quite understand why this should be a surprise.
Social media sites, such as Facebook or Instagram, are very crudely the online equivalent of sharing thoughts and pictures with friends in the local pub. One key difference, however, is that the friend group is usually much wider and therefore, the ability for interactions to remain private is harder to control.
Even if the post is to a closed group of friends, no single person would normally be under an obligation to keep the post confidential and might verbally discuss it or show it to another person (including the employer) or share it outside of the group.
Employees frequently have senior management as friends on their social media network, who will have obligations to the employer, which might conflict with any controversial posts of the employee. Social posts, which are not to a closed group, such as tweets, are obviously much easier for an employer to access or become aware of.
If a social media post links the employee to the employer or colleagues, its contents are most likely to be of interest to the employer if they are derogatory (about the employer or colleagues), harassing or bullying in nature, or contain discriminatory remarks. Such posts could potentially cause damage to the employer's reputation or lead to a breakdown in relationships with colleagues and clients.
An employee was fairly dismissed for offensive, non-work related personal tweets, in circumstances where the employee was followed by 65 of the employer's stores and he had posted on his personal twitter account 28 expletives and used obscene language. His unblemished, good disciplinary record at work was (and rightly should have) been taken into account, but was insufficient to counter the detriment caused to the employer's reputation externally and the employer's relationship with colleagues.
British Waterways Board
The scale of the derogatory remarks was important in this case. The employee was fairly dismissed for offensive and disparaging comments made on Facebook about (a) his supervisor and (b) the fact that he didn't like his job (which on its own was relatively minor) and (c) an admission that he had been drinking whilst on stand-by which was an express breach of company rules.
In this case, the employer's policies very clearly prohibited "any action on the internet which might embarrass or discredit British Waterways... including by posting comments on bulletin boards or chat rooms". The absence of this express prohibition might not necessarily have prevented the employee's fair dismissal, but it certainly helped the employer when defending itself in the tribunal coming across as "reasonable".
In this case, the employer has published to its employees that protecting its image was a "core value" and also made it clear that posting derogatory remarks about the company or its products on social media was likely to constitute gross misconduct. The employee was fairly dismissed for criticising an Apple product in a private social media post. The Employment Tribunal further found that the employee's rights of privacy were not breached in the employer referring to a Facebook post made by the employee to a closed group of friends, as the employee could not legitimately expect his posts to be private as the friends were not subject to confidentiality over the content of the posts.
CONDUCT OUTSIDE THE WORKPLACE
Rather than causing reputational damage, social media can be relied on by employers as evidence of an employee's conduct outside of work, when they are supposed to be doing something else. For example, if the employee is tweeting about other business interests when their contract requires them to work exclusively for the employer or suggests than an employee is 'living it up' whilst on sick leave. In our view, however, this should not be relied on a sole evidence of breach of contract, but should form part of an investigation and could be put to the employee for explanation.
Clear disciplinary rules and workplace policies concerning use of social media and conduct outside of work have assisted employers in recent cases and employers should keep these policies under review.
This article was originally published in PurelyPayroll, October 2015.