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Social media in the workplace

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​On 30 April 2013, Kemp Little held a seminar on social media in the workplace, in conjunction with Portolano Cavallo Italy, SKW of Germany and Bersay of France, providing practical hints and tips for dealing with social media in an employment context.  Below is a summary of the section of the seminar that dealt with taking action against employees for misuse of social media. 

Most, if not all, businesses now use some form of digital media to provide flexibility in the way that they work, or to boost their public image. However, despite all the advantages it offers, the ever growing wave of employees “tweeting”, “trolling”, “blogging”, “linking-in” and “poking” during working hours is creating some interesting challenges for employers.

We have seen some clear patterns emerge in the way that existing employment law principles are being applied to these new scenarios. In this article, we outline three of these areas in more detail.

 

1.      The need for a clearly drafted social media policy

With most employers now using at least two different types of social media to promote their services, the use of written policies regulating this technology has skyrocketed over the past decade. However, recent case law has shown that it’s no longer enough for an employer to simply have a policy in place - in order to successfully rely on a breach of the policy to discipline or dismiss an employee, the document needs to very clearly drafted.

In the case of Grant and Ross v Mitie Property Services UK Limited, two sisters were dismissed for their excessive use of social media sites, including Facebook. The employer’s IT policy permitted employees to access the internet “outside of core working hours”, but the court said that the dismissals were unfair because the policy was unclear about what “core working hours” actually meant.

 

2.      Balance the sanction applied against the harm caused

For most businesses, protecting their public image is a key concern and the increased use of social media is making this more difficult. Having said that, reputational damage caused through the misuse of social media is often speculative and tricky to substantiate.

What the tribunals have made clear in recent case law is that where an employer is relying on damage to reputation as the reason for taking disciplinary action against an employee, or dismissing them, the action taken needs to be proportionate to the harm actually caused.

In Taylor v Somerfield Supermarkets, a manager posted a video on YouTube of two colleagues hitting each other with plastic bags in the storeroom. The video was taken down by the manager after 3 days but the employer found that the video brought Somerfield into disrepute and the employees were dismissed. However, the Tribunal held that the dismissal was unfair - the video had only had 8 ‘hits’ on YouTube, most of which resulted from the disciplinary investigation panel viewing the video.  Somerfield was not able to reasonably say that it had been brought into disrepute by the video and so the dismissal was not within the band of reasonable responses.

 

3.      Human Rights – the freedom to tweet?

Increasingly, employees are relying on arguments of a breach of the Human Rights Act - or even the European Convention on Human Rights (“ECHR”) - in addition to claiming unfair dismissal, especially if they have been dismissed for using social media sites outside of their working hours.

In particular, claimants have tried to demonstrate either that their employer’s reliance on their social media activities is a breach of their right to privacy, or a breach of their right to freedom of expression. Whilst, generally speaking, these cases will only be of direct relevance to public sector employers (as employees can only bring a claim for a breach of the ECHR directly against a public sector employer), private sector employers should still have regard to their principals, as the courts (so far as possible) will interpret all legislation in a way that is compatible with the ECHR.

 

Right to privacy

Employees will struggle to establish that they have a reasonable expectation of privacy in relation to comments made on social media sites such as Facebook. Although an employee’s Facebook page may only be open their "friends", it is not private as comments can easily be copied and passed on to others.

In Teggart v TeleTech UK Limited Mr Teggart was dismissed for harassment after he posted an obscene comment about the promiscuity of a female colleague on his Facebook page while at home. The comment mentioned his employer and was read by his Facebook friends, which included some work colleagues. Mr Teggart claimed unfair dismissal and breaches of his rights to privacy, freedom of belief and freedom of expression under the ECHR. The Northern Ireland Tribunal found that when Mr Teggart put his comments on his Facebook page, he had waived any right to consider his comments as being "private".

 

Freedom of expression

As for employees’ freedom of expression, in Crisp v Apple Retail UK Limited, Mr Crisp was dismissed for damaging Apple’s reputation by posting derogatory comments on Facebook about his employer, Apple Inc. Mr Crisp argued that these posts were private, as they could only be viewed by his friends, and he had a right to freedom of expression so his dismissal was unfair. However, the Tribunal found that the dismissal was fair.

It was critical that Apple had made clear in its policies that protecting its image was a "core value" and had specified that making derogatory comments on social media was likely to constitute gross misconduct. In this case, the Tribunal found that the employer’s action in dismissing Mr Crisp was proportionate to the harm caused by the posts.

In contrast, in the case of Smith v Trafford Housing Trust, Mr Smith, who was a Christian, posted a link on his Facebook wall to a news article titled "Gay church 'marriages' set to get the go-ahead", and added his own comments implying that he didn’t approve. The employer’s Equality Opportunities Policy expressly prohibited employees from promoting their religious and political views at work and, as a result, Mr Smith was found guilty of gross misconduct and demoted.

The court found that the employer had no right to demote him, as the postings were not capable of bringing the Trust into disrepute. Mr Smith's views were expressed moderately, on his personal Facebook page and out of working hours, and could not lead a reasonable reader to think the worst of the Trust for having employed Mr Smith. The employer’s policy which prevented the promotion of religious views could not extend to Mr Smith’s Facebook wall in such circumstances, as this was an unnecessary fetter on the right to freedom of expression. This decision supports employees’ rights to privacy and views Facebook essentially as a social and personal medium - it suggests that, unless the context implies otherwise, a work-related context will no longer be easily presumed.

For further information, please contact Elizabeth Kirk or Kathryn Dooks