Many people use social media to communicate with friends and family or to follow their favourite celebrities. But what happens when somebody makes use of social media to post derogatory comments about their employer under the impression that the employer will not find out, realising only too late that their comments have become public knowledge?
The case, Mrs E Plant v API Microelectronics Ltd: 3401454/2016 provides an example of the legal ramifications of such actions. In this case, an employee was dismissed after posting comments about her employer on an account that was linked to the company. The case serves as a reminder of the role and influence social media has in employment and should therefore be incorporated into employment policies.
A social media policy introduced by the employer listed a range of unacceptable behaviours including the posting of comments that could cause damage to the reputation of the company. The policy also warned that comments made under the impression that they were private could well be copied by others and forwarded on without permission.
It was made clear that if employees breached the policy, they could face disciplinary action, including dismissal, if the breach was serious enough.
The employee made a claim to the Employment Tribunal, saying that she had been unfairly dismissed but the tribunal upheld the decision to dismiss, saying:
“The claimant was aware of the policy and one assumes she read it. She must have been aware of what was and what was not allowed….In the absence of an adequate explanation from the claimant…the respondent was entitled to believe that these comments were aimed at the respondent…It may be seen as harsh but the respondents, taking account of the claimant’s long service and clear record, nevertheless dismissed for a clear breach of the policy and that would fall within the range of a reasonable response open to an employer.”
The employer obtained a decision in their favour because they had a clear social media policy which let all employees know what was expected of them and what would happen if they breached the policy.
What should be in a social media policy?
The policy needs to let employees know what’s expected of them when it comes to the use of social media. You should:
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work in co-operation with the recognised trade union (if there is one) or staff representatives to ensure that all concerns and viewpoints are recognised;
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put the focus on ensuring employees are safeguarded from online bullying and protecting the reputation of the company. Don’t make it about proscribing what employees can say – that runs the risk of the social media policy becoming a free speech issue, which can be emotive and very difficult for employers to navigate;
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make it clear what social media activity is acceptable and what should be avoided;
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set out in detail what an employee can expect to happen if they use social media inappropriately and in breach of the policy;
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recognise that employees whose task it is to use social media on behalf of the company know what to do and how to do it; clear boundaries should be established and understood.
An additional point to be aware of: social media is a constantly evolving sector and therefore, the social media policy needs to be reviewed and updated on a regular basis.
Restricting access to social media
Limited and reasonable use of social media during work time is often permitted in a social media policy, but as a safeguard, blocking employees from using social media on company devices might be a good idea.
If limited use is allowed, then clear boundaries need to be set out in the policy so that employees know what they are allowed to do, and breaches can be clearly defined.
Keeping track of social media use on work equipment can be facilitated by using monitoring software, but before setting off on this path, you need to remember that you should make employees aware of what you’re doing.
Additionally, bear in mind that any data you collect while monitoring activity must be gathered in accordance with the UK General Data Protection Regulation (GDPR) and you must make mention of this in your company’s Privacy Notice.
Business use vs private use
The line between private and business use of social media is sometimes blurred as people’s sense of identity becomes linked to that of their employer. Therefore, your social media policy needs to make the boundary between the two more clearly defined. In many companies, business social media activity would be taken care of by the marketing function, but in smaller companies there may not be one, and therefore an employee may find themselves representing the company online when they have no experience or training to do so. The value of a clear and robust policy becomes even more apparent in situations like this.
The policy should explain the rules about what information can be disclosed and the opinions that can be shared online. Additionally, the policy needs to set out the relevant legislation on copyright and public interest that need to be considered when using the organisation’s social media accounts.
Employees should be aware of:
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when they are assumed to be acting on behalf of the company on social media;
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what personal views they can share and what they should avoid doing;
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the law surrounding defamation;
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measures that they will need to take to protect the company’s brand and reputation online.
Some companies are keen to leverage their employees as “brand ambassadors”, which means they will be encouraged to reveal their links to their employer on their own social media accounts. This approach is fraught with difficulty and should be governed very carefully in the social media policy. Other employees may avoid mentioning their employer at all on their personal accounts, but legal advice should still be taken on whether that act of distancing will avoid disciplinary action if they act in an irresponsible or unacceptable way on their personal accounts.
Social media and bullying
If the employee’s online activity is directed towards another employee and this can be construed as bullying, then that should be handled in accordance with the anti-bullying section of the staff handbook or disciplinary policy.
Dismissing an employee for social media activity
When thinking about dismissing an employee for unacceptable online behaviour, you need to ask yourself the following questions:
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Is what they’ve done directly linked to your company?
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If not, does it have the potential to bring your company into disrepute or harm its reputation?
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Is what the employee has done, serious enough to count as a dismissal offence?
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If the employee is a union member, have they been involved in the disciplinary process?
Remember:
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Depending on the seriousness of the offence, a single incident may be enough to justify a dismissal.
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There is no time limit on posts. Therefore, the offensive material may have been posted some while ago but can still be reason to dismiss.
If you introduce a social media policy, then you need to make sure that the employee understands their obligations and duties under it; this can be done with training and getting them to sign a written document to confirm that they have read and understood the policy. This document can be produced later as evidence if a claim arises out of disciplinary action.
What will inform the tribunal’s decision?
When considering social media-related dismissals, tribunals will look at a number of factors, including:
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what the comments were about;
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how badly the reputation of the employer was damaged by them;
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whether they represented a breach of confidentiality;
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whether the employee had made the comments during work hours and on works equipment;
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the existence of a social media policy and the degree to which employees are aware of it and have been trained on the correct use of social media;
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other factors which could mitigate the charge.