As social media is a relatively new phenomenon, there is limited case law on this subject at present with no clear guidance for employers to follow. However, by following our golden rules set out below, making your way through this digital minefield will be much more manageable.
1. Is an employee’s private on-line conduct actionable?
You may have seen the case on the National news earlier this month involving a manager who was demoted as a result of a comment he wrote on Facebook. He stated that a gay wedding held in church was “an equality too far”. His employers, Trafford Housing Trust, instigated disciplinary proceedings against him, he was suspended and subsequently found guilty of gross misconduct. As a result, he was demoted to a non-managerial position with a corresponding salary cut of 40%. Mr Smith claimed that the Trust had acted unlawfully. He said his comment on Facebook was posted outside of work time, it was not visible to the general public and, in his view, he was simply making polite remarks about the importance of marriage. In defending its position, the Trust argued that he had broken its code of conduct expressing political and religious views which may upset his colleagues. The High Court agreed with Mr Smith and found that the Trust acted in breach of contract, stating that “Mr Smith was taken to task for doing nothing wrong”.
By contrast, in the case of Gosden v Lifeline Project Limited, the dismissal of an employee for forwarding an offensive email from his home computer to a former colleague’s home computer was held to be fair. Mr Gosden was employed by Lifeline, a charity which supports vulnerable people, including refugee and asylum seekers, sex workers and ethnic minority communities. The charity also assigns employees to work within HM Prison Service. Mr Gosden forwarded the email to the home computer of Mr Yates, with whom he had worked in Moorland prison. It contained material of a sexist and racist nature and was a chain email with the heading “It’s your duty to pass this on”. Mr Yates then forwarded this email to someone at Moorland Prison and so the email entered the Prison Service’s intranet. Having become aware of this, Lifeline suspended Mr Gosden and, after a full investigation, he was dismissed for gross misconduct. The Tribunal held that Mr Gosden’s dismissal was fair. It was reasonable for his employer to regard the forwarding of this email to an employee of one of its main clients (albeit through the conduct of Mr Yates) as being something which might damage its reputation. The key distinction in this case was the nature of the email. It was a chain email and as such, Mr Gosden had no expectation that it would not be passed on and no intention that it should remain private.
In dealing with issues relating to an employee’s private on-line conduct, you need to undertake a balancing exercise. In deciding whether conduct warrants dismissal, you should consider the conduct itself, the potential audience of the on-line conduct and any potential ramifications of the conduct.
2. What if an employee posts potentially negative comments about your business?
In dealing with such a situation, your response needs to be proportionate and reasonable in the circumstances. For example, in justifying the dismissal of an employee for tweeting or posting negative comments, any perceived damage to your business must be more than speculative.
In the case of Taylor v Somerfield, an employee was dismissed after he posted a video of himself on YouTube play-fighting with a colleague at work with Somerfield plastic bags. Somerfield dismissed Mr Taylor, arguing that his behaviour brought the Company into disrepute. The Tribunal disagreed. The YouTube video had only been viewed 8 times and 3 of those occasions had been by Somerfield managers during their investigations into the matter. As a result, there could not have been any damage to Somerfield’s reputation. The Company’s reaction was unreasonable in the circumstances and Mr Taylor’s dismissal was held to be unfair.
In addition to the requirement of proportionality, an employer must also consider whether the posting of the comment makes it impossible for the employee to continue in his role. This is likely to depend on the seniority of the employee’s position and whether the comment or information posted is a serious breach of trust.
3. What if an employee is being harassed or bullied on-line by another employee?
Harassing or bullying a colleague on-line should be treated in the same way, and with the same disciplinary consequences, as if the behaviour was taking place face to face in the office. It is especially important that you take steps to address any on-line bullying or harassment between colleagues, even if the comments are posted outside of working hours and using an employee’s private computer, given that you, as an employer, could be held to be vicariously liable for the conduct complained of.
An employer is held to be vicariously liable for the acts of his employees which occur “in the course of their employment”. A recent case heard before the UK Employment Tribunal has considered this issue. Mr Otomewo was employed as the manager of a Carphone Warehouse store. Whilst he was at work, two of his colleagues stole his mobile phone and updated his Facebook status to read “finally came out of the closet, I am gay and proud”. The comments were seen by his family and friends and caused Mr Otomewo (who was not gay) distress. The Tribunal held that the Carphone Warehouse was vicariously liable for the actions of his colleagues on that basis that they had accessed Mr Otomewo’s phone, updated his status during office hours and the actions involved dealings between staff and their manager. As the conduct amounted to harassment, the Carphone Warehouse was liable for discrimination.
You can take steps to assist you in defending such a claim. Having a social media policy which deals with online bullying and harassment, making it clear that such conduct will not be tolerated and that disciplinary action will result, can be helpful. However, you need to ensure that you train employees in the policy as part of your equal opportunities training to demonstrate that you took reasonable steps to prevent the discriminatory act complained of.
4. Do not research job applicants on-line
Whilst it may be very tempting to check out your prospective new recruits’ on-line activities to see if they are “suitable”, the golden rule is “don’t”.
Although a lot of information can be gleaned about a prospective employee by looking at on-line resources it can cause problems. For example, if you discover a posted comment showing that an applicant is hoping to become pregnant as soon as possible and you use this information to reject a candidate, you may find yourself facing a sex discrimination claim if the applicant becomes aware of this. It is also very important to remember that not everything you read on-line is necessarily true!
5. Do ensure your employees understand the rules
By having a clear written policy on what is, and what is not, an acceptable use of on-line media, employees will have a frame of reference for appropriate behaviour and employers will be able to rely on the policy to bring disciplinary action if that behaviour goes beyond what is acceptable.
The policy should cover whether the use of social media is acceptable within working hours and, if so, for what purposes and whether employees are allowed to link themselves with you as the employer. The policy should also remind employees that confidential business information should not be disclosed on social media sites and that nothing should be posted or disclosed that could reasonably be considered to lower the employer’s reputational image.
You should also consider whether you have appropriate systems in place to monitor compliance with such a policy and employees should be made aware of the level of monitoring that will be conducted and how it will be achieved. Remember that any monitoring should be proportionate to your legitimate business needs, otherwise it may be considered to be intrusive.
By following our golden rules, you will be better placed to deal with the social media explosion and its impact on the workplace.