Although social media has become an invaluable tool over the last decade for many businesses, for promoting a business, sharing ideas and creating opportunities, it has also become a platform for individuals to express their ideas, feelings and interests.
Such actions by employees can create risks and reputational damage to businesses where the employee expresses a view contrary to that of the business or shares concerns relating to their work.
A recent example of this is in the case of M Austin v A1M Retro Classics Limited where an employee posted on Facebook after an “extremely heated discussion” with his managing director about alleged poor work being carried out by the company. The employee posted on his Facebook profile “I don’t think I’m a bad person but I don’t think I have ever felt so low in my life after my boss’s comments today.” In response to this post, a number of the employee’s Facebook friends made comments on the post, aimed primarily at trying to reassure him. However, some comments were violent and inappropriate with one friend suggesting that the employee should “punch his boss in the face because it would make him feel better”. The employee was subsequently dismissed for gross misconduct for damaging the company’s reputation and breaching its social media policy.
The Tribunal awarded sizeable damages for unfair dismissal following the employer’s inadequate investigation into the breach of its social media policy. In coming to this finding, the Tribunal ruled that the employer unreasonably confused what was required of an employee by the company’s social media policy and failed to prove damage to its reputation. It was wrong to say (as the employer had) that the social media policy prevented the employee from discussing the company on social media, and it was unfair to punish him for not taking down posts made by others, because the policy did not require him to do so.
This case acts as a reminder to employers to understand the limits of their social media policy.
When considering disciplinary action following an inappropriate post made by an employee on social media, an employer’s social media policy will be critical because that is the employer’s opportunity to set out the expected behaviour. Employers need to consider whether the employee is in breach of that social media policy. In this case, the employee wasn’t.
A robust policy will enable an employer to clearly establish that an employee knew (or should have known if they read it) how they should behave on social media. For example, a policy ought to demonstrate how a connection can be made between an employer and an employee through an employee’s social media account and will need to establish an employee’s duties when using their social media account. When drafting or amending policies, employers will need to consider whether to impose a duty on employees to monitor the responses of comments made on social media accounts and remove them if damaging to the company.
In addition to recognising the importance of having a robust social media policy in place, employers should also follow that through into their disciplinary policies to have a clear indication of the seriousness of a breach.
How can we help?
If you’d like more information or advice on how to guide employees on their social media use relating to work please contact a member of our Employment, Human Resources and Pensions team, or call 0207 880 4263.