Playing catch-up

The employment law applicable to employee behaviours has been slow to adapt to social media, writes Kevin Lynch.

The popularity of social media has rapidly increased over the past few years. The term “social media” is defined by Wikipedia to be a 'means of interactions among people in which they create, share, and exchange information and ideas in virtual communities and networks'. The rise of social media such as Facebook, Linkedin and Instagram has presented various opportunities and risks for employers accross the globe.

In many respects employers are able to draw upon social media to enhance their businesses via marketing (such as the creation of their own Facebook pages and Twitter accounts). That said, the technology associated with social media has developed far quicker than the the law governing its use. Most relevantly to employers, employment law applicable to employee behaviours with respect to social media has been slow to adapt.

From an employer’s perspective, examples of possible issues that arise from an employee’s use of social media may include:

• Employees spending to much work time on social media sites;
• Employees posting material online which defames or brings the employer into disrepute;
• Employees using social media to “cyber bully” and/or defame co-workers;
• Employees using social media sites in a manner which breaches confidentiality or leaks trade secrets;
• Employees posting material online which is contrary the standards of conduct expected of an employee; and
• Employers discovering that an employee has potentially committed misconduct via the material that they have posted online.

Whilst there is no specific piece of legislation that deals with social media issues in the UK in an employment context there are some aspects of wider UK legislation that remain relevant to the employer’s monitoring, processing and/or use of employee social media activity. For instance, the Data Protection Act 1998 governs the processing of sensitive personal and personal data, which includes email communications in certain instances. The Human Rights Act 1998 provides that people have the right to private and family life, and finally, the Regulation of Investigatory Powers Act 1998 also details the extent to which organisations can monitor, record and intercept employee communications

Such issues have caused a large number of employers to develop and maintain social media policies. The utilisation of a well drafted and communicated policy not only provides employers with the tool to manage such potential issues, it can provide an effective defence to unfair dismissal claims.

This point was illustrated via the Tribunal case of Crisp v Apple Retail (UK) Limited [2011]. Mr Crisp was dismissed from employment for bringing the Apple name into disrepute after making derogatory comments about Apple products on his Facebook page. Although Mr Crisp’s Facebook account was set to “private” status, this information was passed to Apple by Mr Crisp’s “Facebook friends”. As Apple had given detailed training on protecting its brand (which included exercising caution when posting on line) and because Apple possessed clear guidance pertaining to email and electronic communications which explained that inappropriate use may result in disciplinary action, the Tribunal found that Mr Crisp’s dismissal was fair. Interestingly, the Tribunal also considered that Apple was proportionately justified in its conduct to limit Mr Crisp’s alleged “right to freedom of expression” by trying to protect its own reputation which is a justification allowed by Article 9 of the Human Rights Act 1998.

While the above case illustrates that an employer who follows a proper procedure may be able to dismiss for a significant breach of a social media policy, employers should not assume that everything an employee posts on the web which it does not approve of has necessarily brought its reputation into disrepute. Whether an employee is guilty of misconduct due to inappropriate social media use will almost certainly turn on the facts of each case.

In contrast to the above, in the case of Smith v Trafford Housing Trust [2012] the High Court held that a Christian employee was entitled to express views on gay marriage on Facebook and doing that did not constitute gross misconduct. It found that the employer acted unlawfully when it demoted Mr Smith by purporting to rely on contractual provisions in the code of conduct and its Equal Opportunity Policy which prohibited the employee from bringing the employer into disrepute and causing offence to colleagues. Although many of Mr Smith’s Facebook friends were work colleagues the court considered that Mr Smith’s colleagues chose to be his friends on Facebook and therefore chose to receive his opinions. With regard to the possibility of bringing his employer into disrepute, the High Court considered that, in that particular instance “Mr Smith’s Facebook was inherently non-work related” and that no reasonable reader would consider Mr Smith’s Facebook page to be anything other than a personal web page. Thus, Mr Smith’s postings could not be mistaken for the views of the Trust, and could not bring them into disrepute. Mr Smith was awarded damages for breach of contract, he did not bring a claim for unfair dismissal.

Employers are also able to investigate and act upon their potential breaches of other existing policies and procedures that take place via an employee’s use of social media. For instance, in the case of Teggard v TeleTeck UK Limited [2011] the Northern Ireland industrial tribunal held that the dismissal of an employee for making vulgar comments about the promiscuity of a female work colleague on his Facebook page was reasonable, and therefore fair. Although the comments did not bring the employer’s reputation into serious disrepute, sexual harassment of a colleague was on its own enough to justify the employee’s dismissal for gross misconduct.

It appears that the majority of the case law surrounding this issue is fact sensitive. That said, it remains accurate that employees can be managed by their employer (and in some instances subject to disciplinary action) pertaining to use of social media.  

Moving forward, employers may consider the following when managing employee behaviour with respect to social media:

• Develop a policy on use of social media while at work. It is important for employers to consider drafting a comprehensive social media policy which is well communicated to employees. As with most policies employers should consult their employees and/or union representatives on its content. A well drafted policy which is known to employees can form a defence to an unfair dismissal claim. Employers should also be aware that policies may have to be updated on a regular basis, especially due to the evolving nature of social media.
• Educate: Employers should consider offering training to advise staff that although social media is often informal in its nature, there is potential that misuse can have serious consequences.  
• Give line managers guidelines on remote/home-working: With respect to home working, line managers should be reminded that the basic rules of effective performance management still apply, for example holding regular performance reviews and maintaining an ongoing dialogue with all staff.
• Induction: Employers should use employee induction periods to establish and explain the standards of behaviour that their company deems acceptable. If staff are permitted to use social media as part of their legitimate employment activities (i.e for professional networking) employers should consider asking them to sign up to special terms regarding confidentiality and post-termination restrictions.
• Links to disciplinary procedures: Employers should be clear about what behaviour will be monitored and what disciplinary sanctions may be triggered. As with any form of misconduct, social media behaviour that warrants discipline should be enforced consistently.

Kevin Lynch is a Locum Solicitor in the Dispute Resolution Department at Essex Legal Services. He can be contacted on 01245 506730 or byThis email address is being protected from spambots. You need JavaScript enabled to view it..