As well as individuals, most businesses now have their own social media presence, but these new channels bring their own potential problems. In this series, Social media policy & law: a guide for HR, we'll share some examples of employee misbehaviour, changes to law & organisational policy off the back of these incidents, and what businesses can do to protect themselves whilst not limiting employee trust & freedom.
The main thing employers can do to help mitigate the risks of social media usage is to have a comprehensive social media policy.
ACAS suggests that as a minimum, it should cover the following areas: network security; acceptable behaviour and use of email and internet; smart phones; social networks including blogging and tweeting; data protection and monitoring; disciplinary consequences of a breach of the policy.
A visible policy
One case that illustrates the advantage of having a clear policy is Crisp -v- Apple 2011. In this case, the Claimant was dismissed for posting negative comments about Apple products on Facebook.
The Tribunal held that his dismissal was fair; Apple had an extremely clear policy that any comments undermining the reputation of the brand would not be tolerated and staff were trained on this from the first day of their employment - as a result, the Claimant should have realised that his comments would be taken seriously (even if on the face of it, they weren’t hugely offensive). The page was only accessible by the Claimant’s friends, but the Tribunal held that the comments could be easily passed on, and the Claimant had no control over this and consequently could have no expectation of privacy.
By extension, this case also illustrates the point that simply having a policy that lingers unread on the staff intranet will not be much help. Staff need to be made aware of the policy and receive training on it; particularly managers, who will be responsible for dealing with issues as they arise. In Crisp -v- Apple (see above) it was absolutely key that the company’s policy regarding negative comments had been clearly communicated to employees and was actually a big part of the corporate culture.
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Simply having a policy that lingers unread on the staff intranet will not be much help
As in other contexts, employers should think carefully about the wording of the policy that they put in place. If examples are given of behaviour that would be viewed as misconduct or gross misconduct, then failing to stick to these categories can make a dismissal unfair (Walters -v- Asda Stores 2008).
Other useful policies
Employers need to be aware that they may be vicariously liable for the acts of their employees. It is therefore crucial to ensure that equal opportunities and anti-bullying policies are in place. The following two cases provide useful examples:
- Teggart -v- TeleTech UK Ltd 2012: Mr Teggart posted the following message on his Facebook page: “quick question who in Teletech has A not tried to f…? She does get around!”. A was not Teggart’s Facebook friend and didn’t have access to the page, but was told about the comment by another colleague. She asked him to remove it, but he responded by posting further rude comments about her. The employer decided that this amounted to harassment and dismissed Teggart for gross misconduct. The Tribunal held that this was fair and Teggart’s actions were in clear breach of the company’s anti-harassment policy.
- Otomewo -v- Carphone Warehouse 2011: a Carphone Warehouse manager left his mobile phone at his desk. While he was in the back office, two junior employees accessed his Facebook page and updated his status to, “Finally came out of the closet. I am gay and proud.” Mr Otomewo was not gay, nor did his colleagues think that he was – it was intended as a joke. He succeeded in a claim for sexual orientation harassment and Carphone Warehouse was vicariously liable for the junior employees (the incident occurred at work during working hours and was within the course of employment).
Teggart is closer to the cyber-bullying end of the spectrum, whereas Otemewo concerned conduct that was intended as a joke. In both cases, the claimants were successful. This highlights that it is important for employers to remember that inappropriate office ‘banter’ or jokes can be just as likely to cause problems as more serious instances of targeted bullying.
Employees should also be reminded that jokes and banter can be just as offensive as comments made in a more serious context, and may still result in disciplinary action being taken.
Training and enforcement
As with any policy, enforcement must be consistent - and this is why training managers is crucial. Ideally, the training should be repeated on a semi-regular basis and with updated examples.
For example, in Mason -v- Huddersfield Giants Ltd 2013 the Claimant was dismissed because his girlfriend had posted an offensive image on his Twitter account. The photo had been taken on the Claimant’s phone by a teammate during ‘Mad Monday’ drunken antics. He was dismissed, but the Tribunal held that the dismissal was wrongful as the threshold for gross misconduct had not been reached.
Principally this was because it was held to be unlikely that anyone would assume that the Tweet was condoned by the Club, and therefore it did not bring the Club into disrepute - but it was also held to be relevant that the Club had taken a very lenient stance as regards previous ‘Mad Monday’ antics (in contrast to how it had sought to deal with this issue). This demonstrates the value in consistent enforcement of policies. It will also be crucial to ensure that a full investigation is carried out before an employer decides on whether disciplinary action is appropriate. This will include hearing the employee’s side of the story as well as any witnesses etc.
Together with an awareness of the key issues, taking steps to put in place a good policy and an effective training scheme should help to ensure that employers benefit from the many advantages of social media, without suffering from the potential disadvantages.
Social media has collectively had a huge impact on the modern workplace, and employers need to ensure they are ready to meet the challenges it presents.
About Rachel Allan
Rachel is an associate in the employment law team at Bristows LLP. She advises on the full range of employment matters. In addition to general HR advisory issues and dispute resolution, she also drafts contracts and handbooks and provides employment law support to the corporate team.
Rachel is a member of the Employment Lawyers Association and regularly writes articles on topical employment law issues.