The behaviour of employees on social media and an employer’s ability to discipline inappropriate behaviour has been a ‘hot topic’ for some time. There is sometimes some concern amongst employers as to whether they can rely on what are, ostensibly, ‘private’ comments as amounting to disciplinary issues in the employment context.
Could a disciplinary warning infringe the employee’s human rights; could the employee resign and claim the employer has breached mutual trust and confidence and if the employee was dismissed would it be unfair?
The ACAS guidance on best practice recognises that drawing a line between work and home life can be difficult for employers.
However, no matter where or when postings are made an employer may have legitimate concerns regarding postings that contain extremely offensive comments; vulgar and insulting language and abusive remarks. This was highlighted in one recent case* where the employer considered that an employee had been guilty of gross misconduct following something he had tweeted even though he had been using his own private Twitter account. In this circumstance the employee was aware that a number of colleagues were following him on Twitter meaning the employer was entitled to take action on the grounds that there was a chance that offensive tweets would be read rather than needing to prove that the tweets had actually caused offence.
It noted that a balance needed to be struck between the employee’s freedom of expression and an employer’s desire to reduce reputational risk from social media communications by employees. It found that the balance in this case fell in favour of the employer.
It will not always do so. For example, in a previous case** an employer demoted an employee for comments he had made in a Facebook status that related to his views on same sex marriage. The employer’s concern had been that his views and personal convictions could be misinterpreted as their own. However, in a claim for damages the High Court found in favour of the employee as the comments made had not acquired a sufficiently work-related context, even though the employee had identified himself on his Facebook wall as a manager of the employer.
Clearly the individual circumstances will have to be taken into account in order to assess if action is appropriate. Where comments made have clearly caused offence then it might be easier for an employer to justify dismissal. Take for example the recent news stories regarding the dismissal of a stock broker for tweeting that he had just knocked over a cyclist but couldn’t stop as late for work “LOL”. The tweet went viral; there was a huge backlash against him and even the police got involved despite his later post that this was just a joke!
In order to avoid social media problems the best starting point for employers is to put a clear policy in place on acceptable use of social media and to bring that policy to the attention of all staff. The level of content may vary but the key messages will be that social media activity is not necessarily private and that online conduct can be harmful to the company and can amount to gross misconduct. Disciplinary policies should also be reviewed to ensure that they make specific reference to conduct on social media.
Not only does a clear policy help avoid inappropriate social posts but it will also place employers in a much stronger position should it feel that action needs to be taken.
*Game Retail Ltd v Laws UKEAT0188/14
**Smith v Trafford Housing  EWHC 3221