Social media is increasingly becoming an issue for employers, with its ever-growing popularity and its consequential impact on all areas of individuals’ lives. It’s clear that social media is here to stay as part of both social and work life, and employers need to know what action they can take against an employee who commits social media related misconduct. Such misconduct can take many forms, ranging from an employee making disparaging comments about his or her employer or colleagues, or that employer’s customers, products or services, to an employee expressing a view entirely unrelated to the employer’s business but which nonetheless could reflect negatively on the employer.
The guidance we have from the Courts is relatively limited, however some of the recent cases illustrate how the Courts approach social media related misconduct dismissals. In Crisp v Apple Retail (UK) Limited, an employee made disparaging comments about his employer and its products. The Court found that it was likely that damage would be done to the employer’s reputation on account of such comments. Further, the employer had given the employee specific training as to how properly to use social media in the context of his employment. In these circumstances, the employer’s dismissal of the employee was fair. Conversely, in Witham v Club 24 Ltd, an employee made disparaging comments about her colleagues and was dismissed on account of those comments. The employer did so because it felt that her comments could damage a key business relationship that it had with an associated company, whose employees were impliedly referred to in the employee’s comments. The Courts found the comments were mild and could not reasonably have damaged the employer’s relationship with the associated company, bearing in mind the size of both operations, that the comments were relatively moderate and that the comments were those of just one employee of a junior level. Further the employee had a good employment record. In these circumstances the dismissal was unfair.
Cases in which an employee expresses an opinion as to a topic of societal interest which could impact negatively on his employer, either if such views were taken to be the views of the employer itself or simply on account of the employer employing an individual who holds such views, are more difficult. In Adrian Smith v Trafford Housing Trust an employee stated on a social media site that he believed gay marriage was a “step too far”. His views were expressed in a measured way and were entirely unrelated to the employer’s business. However his employer considered such comments could be harmful to its reputation and could breach its equal opportunities principles. The Courts found that the employer could not reasonably have been brought into disrepute by these comments. Furthermore, the employer’s equal opportunities principles should respect the rights of the employee who made such comments, which were a reflection of his religious views, to the same degree as the rights of those who might be impacted by his comments. The Court for those reasons found that the employee had been wrongfully dismissed.
What constitutes an unfair dismissal in relation to social media misconduct?
We can see from these and other recent cases that the Courts will take into account many factors in assessing whether a dismissal is fair. Such factors include:
- the nature and severity of the comments made by an employee;
- the subject matter of those comments;
- the extent of the damage caused to an employer’s reputation;
- whether there has been any breach of confidentiality;
- whether the employer has a social media policy in place and whether employees have been given training as to that policy;
- whether the comments made by an employee were made during working hours and/or using the employer’s equipment; and finally
- whether there are any other mitigating factors.
Any decision to dismiss an employee should be based on a fair and unbiased consideration and assessment of each of these factors, in order to minimise the chances of being found guilty of an unfair dismissal.