'Tis the season to be jolly (and post it all over social media) Nigel Tillott of Davies and Partners
By Nigel Tillott, head of Employment and Regulatory Law at Davies and Partners
For the past few years, staff parties and social events have been a distant memory for most. Even when limited events have taken place, they have had to be scaled down. Many employers and employees will now be enjoying a newfound freedom to celebrate and socialise together.
With such events, comes the risk of embarrassing photos and videos, and the inevitable urge for employees to take to social media. Unfortunately, this often comes with a rise in employers needing to take disciplinary action for employees' conduct, including conduct outside the workplace and inappropriate or unacceptable online conduct via social media.
The potential misconduct of an employee can take the form of many different activities, with the usual culprits on social media being posting derogatory statements about colleagues or criticising the employer.
Once posted on social media, they can become public for anyone to see. Even if an employee has the privacy setting on their Facebook profile, if it is shared, a post which was meant for trusted friends to view can quickly go viral. Comments made about an employer or the products they produce can cause significant reputational damage, as well as bringing the employer into disrepute.
There is a plethora of case law involving an employee's conduct on social media. Here are a few examples of how it can go dreadfully wrong.
Where an employee engages in bullying or cyberbullying of a colleague, this will usually be clear gross misconduct, with a dismissal being for a fair reason, subject to fair process being carried out.
This was demonstrated by the case of Teggart v TeleTech, where an employee posted comments on Facebook about the promiscuity of a female colleague, using very strong and suggestive language. His employer dismissed him, and even though the comments did not affect the reputation of the employer, the dismissal was found to be fair. Clearly there will be difficult questions where the posts are not quite so vulgar, but in cases such as this, an employer has an obvious reason to dismiss.
A more difficult question is where an employee actively criticises their employer. There are various cases, which go different ways. In British Waterways Board v Smith, the dismissal was fair, where an employee made derogatory comments about his employer, including referring to his bosses as "nasty horrible human beings".
In Crisp v Apple Retail, an employee who worked at Apple and posted critical comments about an Apple product was also fairly dismissed. Not surprisingly, Apple had a very strict social media policy, which was intended in part to protect its brand. However, in Trasler v B&Q, an employee who was dismissed for posting that his place of work was "beyond a joke" was not fairly dismissed.
The consistent reasoning appears to be that the dismissal is more likely to be fair where the posts have an impact on the business and its reputation, which will be a question of fact and degree.
Having a detailed policy, which sets out clear parameters of what it and is not acceptable online behaviour, can go a long way to successfully defending unfair dismissal claims.
There is also a question of what happens if posts in no way relate to the employer or any colleague? In this situation, a dismissal is very unlikely to be fair.
In Mason v Huddersfield Giants, a professional rugby player's team-mate took exposed pictures of himself on his teammate's phone, which the player's girlfriend then tweeted using his personal Twitter account without his knowledge. He deleted the tweet after two days, but was dismissed for not doing so quickly enough.
The High Court found that this did not amount to gross misconduct and was not convinced that the tweet could be seen as "being inextricably linked to the club", as it was highly unlikely that the employer would condone the tweet.
The matter gets more complicated if the post relates to a controversial topic. In Smith v Trafford Housing Trust, a Christian employee expressed his views on Facebook about gay marriage and was dismissed. In that case, it was found that he was entitled to express his personal views, and it was clear from his Facebook page that he was not using the page for work related purpose, even though he identified himself as an employee, so there was not a fair reason for dismissal.
Employers need to be extremely cautious if they wish to dismiss based on posts such as this, because as well as opening themselves up to unfair dismissal claims, there is also a risk that the employee could claim for discrimination on the grounds of their beliefs. This is also a good example of the competing interests of the right to a private life versus the interests of the employer.
What can an employer do to curtail such issues, rather than having to rely on disciplinary processes and dismissals after the event? The most obvious answer is to make sure you have a clear policy in place. This will include a disciplinary policy, but should also include a social media policy. The policies should set out the parameters of acceptable and unacceptable behaviour, so employees are left in no doubt what consequences their actions could have.
There is also a risk that the conduct of employees outside work could result in a claim being brought against the employer by another employee. If the conduct concerned took place "in the course of employment", an employer could find itself liable.
Also, an employer could be held joint and severally liable if a claim for harassment is advanced, if for example comments made by one employee about another relate to a Protected Characteristic, such as their race. Employers are encouraged to ensure all employees have regular training on equal opportunities This will go some way to assisting to defend a claim if brought on such grounds.
If employers have any concerns about risks arising from the conduct of an employee, especially online conduct, or recognise the need for training, Davies and Partners' specialist employment team would be happy to assist and can be contacted on 01452 612345 or go to www.daviesandpartners.com.
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