Social media are here to stay
... and it's why employers need a social media policy
Whilst the term "social media" may suggest restriction to the social, we all know that is not the case and has not been for a long time. Businesses use the likes of LinkedIn, Twitter and even Facebook to promote their business, products and services. Some even use it to tout for employees. With a number of cases now beginning to reach the employment tribunals it is also evident that, dare I say it, employers are using social media to spy on, discipline and even dismiss employees.
Of concern is the potential excessive use by employees of online social networking sites, to the detriment of the amount of time spent on work. More importantly there is a growing concern that use of social networking sites can often be to the detriment of the employers’ reputation. It has never been more important for employers to put in place a social media usage policy setting out what is and is not acceptable.
Set a clear policy
The policy needs to state clearly that the main aim is to ensure employees avoid saying something that not only brings the employer into disrepute, but also entails a breach of client/customer confidentiality. The policy should also extend to protect employees from comments made by colleagues, who often use sites such as Facebook to complain about line managers, team leaders etc.
In February 2010 Travel TUI dismissed an employee who posted a comment on her Facebook page about being angry with her "brown nosing" colleague. The company defended its decision by referring to its social media policy, which set out that employees should not post comments on internet sites that could be regarded as bullying, harassment or discrimination against company employees, clients or customers.
The policy should state that a breach of the terms of the policy will not be tolerated and allows the employer to take disciplinary action against those involved, potentially resulting in the termination of their contract of employment. It follows that employees should also be made aware that the employer will be monitoring their systems and networks, and that inappropriate/offending comments will be removed or the employee expected to remove any such inappropriate/offending comments immediately on being asked to do so.
The case of Gosden v Lifeline Project Ltd ET/2802731/2009 illustrates only too well that it is also important for the policy to state clearly that employees need to be aware of the risks of using social media in their own time and on their own computer. Mr Gosden was employed by Lifeline Project Ltd (LPL) and was assigned to HM Prison Service (HMPS), a client of LPL. Outwith working hours and from his home computer, Mr Gosden sent a colleague employed by HMPS, an offensive chain email of a racist and sexist nature with the heading “It is your duty to pass this on”, and entitled “The British are Way Ahead of Us.” The email, in an attempt to encourage Muslim men to commit suicide, called on British women to walk naked through the streets. The colleague forwarded the email on to someone who worked in Moorland Prison, following which the email was brought to the attention of HMPS. Following a suspension and disciplinary proceedings, LPL dismissed Mr Gosden for gross misconduct. He then unsuccessfully brought claims for unfair and wrongful dismissal.
In its judgment the tribunal considered privacy in a broad context and acknowledged that Mr Gosden had in his own time and from his own computer sent an email to a friend at his home computer. Nevertheless it held that the email “was not a confidential communication whatever the means of its dissemination”, and agreed that the conduct could have damaged LPL’s reputation and integrity.
Employers should not take this to mean that they can dismiss every offending employee for a breach of their social media policy. The unreported case of Stephens v Halfords plc clearly illustrates that each case depends on its own facts and circumstances and that the employer's decision to dismiss an employee for gross misconduct will not always be fair. Mr Stephens was a deputy manager with Halfords. He posted comments on Facebook entitled "Halfords workers against working 3 out of 4 weekends". Two days later he removed the comments when he realised his conduct contravened the terms of the company's social media policy. Despite removing his comments, Mr Stephens was disciplined and ultimately summarily dismissed for gross misconduct. Whilst the employment tribunal held that the company's investigation and belief in Mr Stephens' conduct was reasonable, it determined that summary dismissal was not within the range of reasonable responses open to the company. In reaching its decision the employment tribunal took account of Mr Stephens' clean record, the fact that he removed his comments almost immediately on realising it was a ground for disciplinary action, and because he apologised for his actions, promising never to do it again.
Apply it consistently
Of course having a social media policy is not in itself sufficient. Employers must be able to demonstrate that they are being consistent in applying the policy. In Preece v J D Wetherspoon plc, Liverpool ET, 18 January 2011, the tribunal commented on the employers’ failure to address the conduct of the claimant's colleagues. It said: "given the fact that the tribunal was asked to accept the allegations were serious and merited summary dismissal, it is surprising that the respondent did not address the part played by [the claimant's colleagues]".
This was not an issue ever raised by the claimant, but even if it had been, it is doubtful that the tribunal would have been persuaded to determine the dismissal was unfair, as it said: "with the exception of [employee name] who referred to the customer...as a 'moaning old hag', there was no abuse by those employees... in direct contrast to the claimant's communications, which were clearly abusive. Consequently, the fact that the respondent took no action against her colleagues in comparison... does not assist the claimant because the comparison is not 'like for like'".
Whether or not the conduct of the other employees in comparison to the claimant's conduct was "like for like", it could be argued that it did not prevent the employer from taking disciplinary action against the other employees, albeit with a different outcome.
One thing the employers in the abovementioned cases all have in common is a social media policy entitling them to take the action they did. Without a well drafted and up-to-date policy, it is questionable whether an employer could be deemed to have implemented appropriate procedures justifying disciplinary action and ultimately dismissal. Given that the primary aim of a social media policy is to protect the employer's reputation, clients are best advised to take immediate action and ensure they have appropriate policies in place.
Associate, Anderson Fyfe LLP, Solicitors