The impact of social media on working life has been steadily increasing in recent years, and it is now an issue which employers ignore at their peril. Social media is widely used by employees and employers for commercial purposes; and employees actions in their 'online' personal lives may also impact on them at work, as the line between 'work' and 'personal' becomes ever more blurred. Jodie Sinclair outlines five key issues and practical steps to consider in relation to social media and the workplace.
1. Inappropriate personal use of social media
It is a well established principle that inappropriate behaviour outside the workplace can sometimes warrant disciplinary action by an employer. This rule applies equally to the way in which employees use social media, even if the account in question has been created purely for personal purposes.
This was the case in an Employment Appeal Tribunal (EAT) decision called Game Retail Limited v Laws (2014). Mr Laws had set up a personal Twitter account and followed sixty five Game Retail stores, in order to monitor their tweets. Game Retail had no policy on inappropriate use of social media. Mr Laws' account was operated mainly in a personal capacity and did not identify him as a Game Retail employee, but his account was publicly visible. Mr Laws was dismissed for posting 28 generally derogatory (but non work-related) tweets. The employer described the tweets as
"…intimidating, racist and anti-disability…[and] offensive to other groups of people including dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the police and disabled people."
The Employment Appeal Tribunal (EAT) said that a dismissal in the circumstances outlined above may be fair – but declined to provide any general guidance regarding social media misuse. HHJ Eady QC said that such cases should be approached on their own facts, applying the long-established 'range of reasonable responses' test.
Therefore, where comments on social media are made on a personal account, it will be necessary to deal with concerns on a case-by-case basis, applying general rules of reasonableness around personal conduct outside of work.
2. Criticising the employer
There is nothing new about employees indulging in a good moan about their employer; what is new is employees' ability to use social media to effortlessly disseminate their views widely, instantly, and often in the heat of the moment.
There are many examples of such situations occurring in recent years, including the tribunal case of Crisp v Apple Retail (2011), where an employee used Facebook to openly criticise Apple products – his dismissal was held to be fair. It was critical to the tribunal's decision that Apple had made clear in its policies and training materials that protecting its image was a "core value" and making derogatory comments on social media was likely to constitute gross misconduct.
A contrasting case is Walters v Asda Stores Ltd, where an Asda manager was unfairly dismissed for posting on Facebook that she would like to hit customers on the back of the head with a "pic axe". It was significant that Ms Walters' conduct fell into the "misconduct" (rather than gross misconduct) category within the examples given in the employer's internet policy and neither did that policy specify that such conduct by managers would be viewed more seriously.
Therefore, an employer's policy and approach to social media will be key, alongside other surrounding circumstances that would usually be taken into account when determining whether dismissal fell within the 'range of reasonable response' – for example, previous good service, the degree of offensiveness of the comments and the degree of harm that has been, or might have been, caused.
3. Bullying and harassment
To what extent should employers be alive to online conduct by employees that might amount to bullying and / or harassment of other employees? Cases brought on this basis are becoming increasingly common. One example is Teggart v TeleTech UK Limited (2012), in which an employee made highly offensive and derogatory comments on Facebook about the promiscuity of a female colleague. His subsequent dismissal was held to be fair: although the comments did not bring the employer's reputation into serious disrepute, the harassment of a colleague was sufficiently serious on its own to justify the dismissal.
Such conduct is likely to breach an employer's policy on workplace bullying and, if so, should be treated in the same way as if it had occurred in the workplace. This is particularly so in circumstances where the employer may be vicariously liable for the conduct.
4. Employee monitoring
The Regulation of Investigatory Powers Act 2000 (RIPA) may come into play if comments on social media sites are incepted on an employer's own IT systems. RIPA regulates an employer's ability to intercept electronic communication between two parties (one or both of which may be an object; for example, a social media website server). However, in various circumstances, such interception may be lawful either because the relevant contractual / policy wording provides consent, or because the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 apply. In the context of social media abuse, you may be able to make use of these regulations if an interception is part of an investigation into misconduct or the unauthorised use of the employer's IT system.
Employers should also be aware that reviewing data posted by their employees on social media networks using the employer's IT equipment is likely to be 'processing' personal data, so the principles of the Data Protection Act 1998 will be engaged.
5. Policy documentation and communication
The clear message from the developing case-law on social media issues is that employers are best protected if they have in place is a well-drafted and clearly communicated policy, which sits alongside relevant contractual provisions.
Factors to consider when drafting such documentation would include the following.
- Details of restrictions you require on employees' use of social media, whether during working time or outside of work.
- Disciplinary matters - how misuse of social media will be defined and dealt with.
- Cross-references to other relevant policies, such as disciplinary policies and procedures, data protection / employee monitoring, raising concerns and equal opportunities policies.
We can assist by assessing risks particular to your organisation and preparing or updating your social networking policy or existing internet policy, so that you are best placed to deal with any issues that arise.
Bevan Brittan's employment team is regularly tweeting the latest employment law news @BevanBrittanEmp. In addition, I can be found tweeting on matters employment law related, under the handle @jodiesinclairBB.