Employers can find it difficult to deal with employees' use of social media when it affects the workplace. Yet developments in technology like the new Apple Watch means that this is only likely to increase. We look at how employers should deal with it.
Commentators are already suggesting that the recent launch of the Apple Watch will lead to an increase in users' social media activities as it will be even easier for people to connect to their social networks such as Facebook and Twitter and track their 'online lives'. It is increasingly important therefore for employers to be aware of how to react when an employee's activities on social media blur the line between their personal and work lives.
What lessons can we learn from case law?
In the last few years a number of cases have made the news where employers have dismissed employees for social media-related conduct. This is often where an employee has made derogatory comments about their workplace or colleagues on Facebook or Twitter, or where social media has exposed an employee's inappropriate behaviour - whether in or out of the workplace.
In the recent case of Game Retail Ltd v Laws (involving the computer game retailer 'Game') the dismissal of an employee who had sent offensive, but apparently private, tweets from his personal Twitter account in his own time, was held to be potentially fair. This was because the employee was aware that his Twitter account was being followed by a number of stores and his tweets could have been, and were, seen by staff. Because of this the Employment Appeal Tribunal found that the offensive tweets could not be considered private and had acquired a work-related context.
This decision contrasts with the case of Smith v Trafford Housing Trust where an employee's private comments about gay marriage on Facebook (which some colleagues saw and found offensive) were found by the high court to indeed be private and did not affect his employment.
Despite these high-profile cases (or perhaps because of them), some employers still find it difficult to deal with social media issues and some employees still fail to acknowledge the possible consequences of their activities and comments online. The development of the Apple Watch (and of similar products which are likely to be launched in the future) means that these issues are only going to become more common-place.
So what should employers do?
The law is still getting to grips with the new technology and rise in cases involving social media. Employers and employment tribunals must work within the existing legal framework and there are no special rules as yet formulated for social media cases. However some general principles can be identified. These give useful guidance on how employers should deal with social media misconduct:
- make sure you have a specific social media policy in place
- ensure that all employees are aware of this policy and understand it, ie by training all staff
- if your organisation does not yet have a social media policy, at the very least, make sure that the misuse of social media is specifically addressed within the disciplinary policy.
If employees have a clear understanding of what they should and should not do in terms of their social media activities (insofar as it could potentially affect their employer or employment), then they are likely to have far less scope to complain (and challenge any disciplinary action, such as dismissal) if they do not follow those rules.
But, employers need to be aware that just because a policy might say that a breach of its rules will warrant dismissal, it will not necessarily make that dismissal fair in the eyes of the law. Instead, employers must also consider all the circumstances of each case as every one will be different. This will include consideration of:
- where and how the comments have been made ie using work or their own equipment, at home or in the office
- the nature and subject matter of the social media comments
- whether comments amount to breach of any other company policy such as harassment or confidentiality
- whether any derogatory or offensive statement made by an employee online has or may damage the company's reputation or its relationships with customers or suppliers
- what evidence shows that the statement has caused any damage or could cause damage (this needs to be clear before relying on the conduct as a basis for dismissal)
- whether fellow employees are affected and whether any complaint has been made
- any possible mitigation, e.g. whether the employee has removed the offending comments, their previous record and whether they have shown any remorse
Employers should take a step back and consider the full picture when faced with potential social media misconduct, rather than make a knee-jerk reaction and jump straight to dismissal when such issues are brought to their attention. Careful consideration of all surrounding factors will be required.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.