Focus on… Social media misconduct
2nd March, 2016
We are finding that an increasing number of employers are coming to us with inappropriate content an employee has posted on social media sites such as Facebook.
This isn’t surprising given that one billion people are active on Facebook alone and apps downloaded onto phones makes Facebook easily accessible 24 hours per day.
Here, we take a look at case law on Facebook use and consider when an employee can be held accountable for their actions online.
Where do employers stand?
An employee’s conduct outside of work can be challenged by an employer where the conduct goes towards the employment relationship, for example the conduct of the employee may cause reputational damage.
Reputational damage is a big issue on social media sites where comments can be shared around the world on a few clicks of a mouse. Below we consider case law examples of Facebook dismissals.
Facebook – fair dismissals
Ward v Marston’s Plc – An employee made a comment on Facebook stating that an area manager, whom he had not met, “is apparently a ****”. The employee was Facebook friends with colleagues who would have been aware of who he was talking about. The dismissal was held to be fair.
Crisp v Apple Retail (UK) – An employee who worked for Apple criticised one of their apps on Facebook stating, “MobileMe ****ed up my timezone for the third in a week and woke me up at 3am? JOY!!” and “once again **** you very much work”. The subsequent dismissal was held to be fair. Apple was able to rely on its policies and training which made it clear that protecting its image was a core value and that making derogatory comments on social media would likely be regarded as gross misconduct. The Tribunal held that the employee did not have a reasonable expectation of privacy on Facebook as even though his page could only be viewed by friends, he had no control over whether his comments would be copied and passed on.
Facebook- unfair dismissals
Trasler v B&Q – An employee’s posts read that “his place of work is beyond a ****ing joke” and that he would soon be “doing some busting”. The Tribunal found that the dismissal was unfair as it was not reasonable for his employer to conclude that the comments made were a threat to the business and further that the employment relationship was not so undermined that dismissal was necessary. While the employee was successful in obtaining a judgment in their favour, they were also held to have contributed to their dismissal which led to their compensation being reduced by 50%.
Whitham v Club 24 Ltd t/a Ventura – An employee posted on Facebook comments such as “I think I work in a nursery and I do not mean working with plants.” The subsequent dismissal of the employee was unfair as the comments were thought “relatively minor” and there was nothing to suggest that the employer had been embarrassed or that its relationship with a key client had been harmed as a result. In this case, the employer was held to have not considered mitigation such as the employee’s exemplary employment record and her immediate apology about her conduct. Contributory fault nevertheless reduced the compensation by 20%.
The case law appears to regard the following as important:
Consider whether the employee relationship is capable of being undermined by the comments;
Consider any effect the comments could have on the Company, including reputational;
Consider who may have seen the comments made;
Consider how many comments have been made, the nature of those comments, the subject matter of the comments, whether there have been replies to the comments and the frequency of any comments made;
Consider any mitigation for the employee, for example whether the employee has shown remorse for their conduct and their previous disciplinary record;
Consider whether the employee’s conduct breaches any of your policies;
Consider whether the employee has received any training on social media/internet use.
Religious views Facebook posting
While it is possible to dismiss an employee for offensive comments unrelated to work, the employer should also take care not to discipline employees for expressing their views.
In Smith v Trafford Housing Trust a Christian employee had posted a link to a news article “Gay church ‘marriages’ set to get the go-ahead”, adding the comment “an equality too far”. Another employee had posted “Does this mean you don’t approve?” to which the employee replied “No, not really, I don’t understand why people have no faith and don’t believe in Christ would want to get hitched in church the bible is quite specific that marriage is for men and women if the state wants to offer civil marriage to same sex then that is up to the state; but the state shouldn’t impose its rules on places of faith and conscience”. The dismissal of the employee was held to be wrongful with the High Court stating that the employee was entitled to express his personal views on gay marriage.
Abuse of colleagues
In Teggart v TeleTech UK Ltd an employer was entitled to dismiss an employee who commented about a female colleague “quick question who in Teletech has A not tried to ****? She does get around!”.
Social media policies
It is important that employers have social media policies that can be relied upon when an employee precedes to post inappropriate content online. It is useful to remind employees that conduct outside of work may result in disciplinary action if such conduct affects the employment relationship. We recommend that social media policies are included within Company handbooks.
If you would like to discuss a social media incident or require assistance in drafting a social media policy our team would be happy to help.
Monitoring Emails – the right to privacy
On a related note, you may have seen the ruling of European Court of Human Rights in Barbulescu v Romania in the news recently.
In this case, the employer had asked its employee to set up a Yahoo account to be used to respond to client queries.
The employer had proceeded to monitor the account and confronted the employee with a 45-page transcript of personal emails which had been sent in work time (this evidence was sought after the employee had insisted that he had only used the Yahoo account for work purposes).
The employee was dismissed for breaching company policy by using the work computer for personal purposes. The employee argued before the court that to monitor the emails was a breach of his Article 8 right to privacy.
The Court held that while the Article 8 rights were engaged, there was no violation. The employer was entitled to verify that the employee was completing professional tasks during working hours.
This is perhaps an unusual case as the email used for work purposes was in fact a Yahoo account set up by the employee; usually work emails are created and controlled by the employer.
It was relevant in this case that the employee was informed that emails were being monitored and the violations were done in work time and on a work computer. However, this case does not give employers an absolute right to monitor employees, a careful balance must be struck against an employee’s right to privacy.
How Ward Hadaway can help?
For further details on social media policies or any other employment and HR issue raised by this update, please get in touch with Paul Scope or another member of the Employment Team.