In May this year a BBC Radio host was fired over a controversial tweet in which he posted a picture of a couple holding hands with a chimpanzee dressed in a suit, with the caption, “Royal baby leaves hospital”. The photo was removed shortly after it was posted, but not before it was shared with over 500,000 followers. The BBC dismissed the radio host for the tweet, which they stated was “a serious error of judgment and goes against the values we as a station aim to embody”.

Employers are now realising that they need to take firm action against online misconduct outside the workplace, but just when do social media posts become an employer's business?

Tribunal’s stance on social media conduct

In the recent case of Forbes v LHR Airport Limited, the question for an employment tribunal was whether an offensive image posted by an employee, Ms Stevens, on a private Facebook account, which was then shown to a work colleague who was offended by the post, was done “in the course of employment” - thereby making the employer liable for the employee's actions.

The Employment Appeal Tribunal (EAT) found that, although the image shared by Ms Stevens was capable of giving rise to offence on racial grounds, she was not found to have acted in the course of her employment, because

  • the image made no reference to the employer or any of the employer’s employees
  • the image was shared by Ms Stevens privately amongst her Facebook friends’ list; and
  • the Claimant was not on Ms Stevens' friends list: the Claimant was only made aware about the post because another colleague showed it to him.

So, on this occasion the employer escaped liability for an employee's conduct online. However, social media is increasingly blurring the lines between professional and private lives. Although there are positive aspects to this, new technologies make it easier for employees to engage in unacceptable conduct and, at the same time, make it more difficult to identify where such misconduct has occurred in the ‘course of employment’.

What about freedom of expression?

Employees may also argue that publication online engages their human rights, specifically the right to freedom of expression. However, this argument failed in the case of Teggart v Teletech UK Limited, where an employee posted comments online about the alleged promiscuity of a female colleague. The comments were made on a public Facebook page, but a tribunal found that the employee's resulting dismissal was fair and not an infringement of the claimant's freedom of expression. Such a right is restricted to extent that it cannot be used to harass or damage a colleague's reputation.

However, social media has created a platform for individuals to quickly and easily express and widely disseminate their thoughts. This can be dangerous, as it can facilitate a 'snowball effect', rapidly exacerbating the potential harm caused.

And ensuring that a social media account is set to 'private' will not necessarily assist employees who have posted unacceptable content. In the case of Crisp v Apple Retail (UK) Limited, the employee’s Facebook account was private but the Tribunal nevertheless found against the employee, noting that the nature of the internet means that comments are easily forwarded to others; the individual has no control over how the post may be copied and passed on.

The complexity of managing social media misconduct is not assisted by the fact that the legal framework for dealing with such issues was created long before social media even existed. Although case-law provides some assistance, it has struggled to keep up with the ever-evolving world of technology.

In general, however, it would appear that the correct approach to dealing with unacceptable comments made in the virtual world is not dissimilar to comments made face-to-face: if a comment would be unacceptable in the workplace, it is likely that it will be equally unacceptable if made online.

Given the now widespread use of social media, it is recommended that employers implement a clear social media policy, which covers misconduct on social media outside the workplace. The policy should list examples of what the employer will regard as gross misconduct, such as posting derogatory comments about the employer or colleagues online, or posting the employer's confidential information.

There are no definitive rules on how to assess when an offensive post occurs in 'the course of employment' or whether conduct amounts to online misconduct. This means that each case must be assessed on its own facts.

However, there has been some guidance as to what an employment tribunal will consider, including

  • if the posts were directed at particular colleagues,
  • whether the post would be shared to a large number of ‘friends’ or colleagues,
  • the employee’s level of seniority, and
  • whether they displayed remorse for their actions.

Employers should keep up with the evolving world of social media, by regularly reviewing their disciplinary and social media policies to ensure these are up-to-date and extensive.