Some fascinating results from last month’s survey on employee shareholders. In the first unanimous vote for our survey season, 100% of respondents thought that employee shareholder arrangements should be limited to small and medium sized enterprises and a pretty hefty 62% of voters thought they were a bad idea altogether. The full results are here and are surprising given what we in the employment team have observed, namely that, after an extremely slow start, appetite for these arrangements actually seems to be growing.

Today’s survey addresses the still hot topic of social media: recent cases and news items have focussed on to what extent an employer can discipline an employee for posts on Facebook/Twitter/Youtube and whether they should in fact be able to do so. Daff and Chris pick up the gloves on this one and my money’s on Daff…

Paul Mander, Head of Employment

Daff Richardson

When that whistle blows

Girl, I'm down the street

I'm home, I'm out of my work clothes

When I'm out in the street

I walk the way I want to walk

When I'm out in the street

I talk the way I want to talk….

So sang the Boss in 1980, when Twitter was what birds did and Facebook was unimaginable. But talking “the way I want to talk” isn’t as straightforward nowadays for many employees and could – and sometimes should – lead to dismissal.

Disciplinary policies often address activities outside work that reflect badly on the employer. Other policies state that offensive language, harassment and bullying, in whatever format, are forbidden. Employees are encouraged to have social media accounts to promote their employer’s business (even where “all views my own” is dropped into their profile). On occasion, comments made by an employee on social media will breach those express provisions and the employee will face disciplinary action. Dismissal might be appropriate and fair.

And what about the employee who posts offensive material not in a work context and outside their working hours on their Facebook page or their own Twitter account? Their employer might not be mentioned and the employee might be engaging in what feels like a purely private discussion. Intemperate comments may have been made in the heat of the argument (or after strong liquor has been consumed). Could it be reasonable for an employer to dismiss an employee in those circumstances?

In my view this is an option which must be open to employers. It is tempting to argue that this curtails free speech or is an unwarranted intrusion by employers into the private life of their employees but this is a red herring. Those arguments would not be raised if the offending words were being shouted in the street or published in the press. The fact that social media is the vehicle is irrelevant.

What is relevant is whether the conduct of the employee is likely to bring the employer into disrepute. The employer could be perceived to condone the views expressed by the employee or, because the reputation of the employee is inevitably going to be damaged by what has been said, this reflects back on the employer. There may be privacy settings on Facebook but words can be quoted – and Twitter is pretty much a public forum in which privacy has been forfeited.

And as for the employee who posts on Facebook about their hangover while claiming to be off sick……

Chris Syder

No, an employer should not be able to dismiss an employee over comments made on Facebook or Twitter. Without specific training to identify exactly what the employer expects and why of an employee, online comments can bring the employee and/or employer into serious disrepute and an employer needs to consider its own culpability.

In general terms, excluding defamatory or criminal expression, Article 10 of the European Convention on Human Rights allows us all to express ourselves freely using whatever means of communication we choose. With this right being so central to our civil freedoms, how can it be reasonable for any employer to impose restrictions upon the use of Facebook and Twitter to, say, protect its reputation that exceeds those imposed upon society by legislation?

Some might say the answer lies in the particular bargain between the individual and his employer. Where an employee has brought their employer or themselves into serious disrepute, contrary to the terms of their employment contract, then the established tests for a fair dismissal apply, regardless of the medium used. That is an attractive argument but the point in this digital age is that anyone can, and many do, have a "I hate my boss" moment.

It will be said that the prudent should know to express this away from their keyboard and so only the thoughtless and foolish will be exposed but is that really true? And, even so, is dismissal in such circumstances really a reasonable response?

When communicating on Twitter and Facebook it is very easy to forget the potential size of your audience and, given that the user’s account will often be their own, it is easier still to forget that you are also a representative of your employer. The consequences of thoughtless posts are not at the forefront of their minds when commenting online and the etiquette so very necessary to ensure trouble-free online existence is not yet established.

As such, it cannot be reasonable to dismiss an employee without clear training taking place first because the lines on what is acceptable commentary and what is private and public are increasingly blurred. Even then an employer should have regard for the context of the comment, which may well suggest lack of common sense rather than genuine misconduct warranting dismissal.

For the record - none of the ideas expressed by the writer are shared, supported, or endorsed in any way by Penningtons Manches!