From our own experience in practice, it is clear that the use of social media by employees is becoming more of an issue and employers are also giving more thought as to when social media activity can be used to justify a dismissal. This is also reflected in case law as there have been increasing numbers of unfair dismissal cases before Employment Tribunals in recent years in which the Tribunals have considered the fairness of dismissals for reasons relating to social media. Drawing on this recent case law, below are the hrlaw team’s 5 Top Tips for employers to consider when thinking about dismissing employees for reasons relating to social media.
Top Tip #1: Put in place a social media policy
As a first step, make sure that you have a social media policy in place. The case law consistently shows that having a policy in place which expressly sets out what social media behaviour is and is not permissible as well as being clear as to the potential consequences of such behaviour is invaluable in disciplining and dismissing employees for social media infractions. We have a template to share with clients or we can review an existing policy.
Top Tip #2: If you have a policy in place, make sure that the drafting works
If you have a social media policy in place, make sure that the parameters are clearly defined and the draft is fit for purpose.
It will be important that the policy covers social media activity which takes place outside of work as well as within the workplace. In the case of Blue v Food Standards Agency, the FSA was found to have unfairly dismissed Mr Blue due to certain posts Mr Blue had made on his Facebook page. The Employment Tribunal was, in part, persuaded that Mr Blue’s dismissal was unfair by the fact that Mr Blue’s comments had been made outside of work whereas the FSA’s social media policy only applied to activity which took place within the workplace.
Give some careful thought as to what types of behaviour will amount to misconduct and what will amount to gross misconduct. In the case of Walters v Asda, Ms Walters posted a comment on Facebook about hitting Asda customers on the back of the head with a pick axe. This came to the attention of her managers who dismissed her for gross misconduct. In this case, however, the Employment Tribunal found that the decision to dismiss was unfair. Although Asda did have a social media policy which helpfully listed out examples of misconduct and also gross misconduct, Ms Walters’ comment clearly fell within the misconduct rather than gross misconduct categorisation of behaviour.
Top Tip #3: Make your employees aware of your social media policy
Show that your employees are aware of your social media policy. This can be very useful in persuading an Employment Tribunal that your decision to dismiss was fair.
Consider giving employees training on the content of your social media policy and the implications if it is breached as Apple did in the case of Crisp v Apple.
Require your employees to expressly acknowledge that they have read and understood the terms of your social media policy like the approach taken by Wetherspoons in the case of Preece v Wetherspoons.
Top Tip #4: Check the damage to your reputation
Make sure you consider each infringement on its facts and avoid a knee jerk reaction if an employee has breached your social media policy.
Consider how critical your public reputation is to your business. For employers with a strong brand to maintain, such as Apple or a customer-facing business, such as Wetherspoons, breaches of social media policy have the potential to be extremely detrimental to their businesses. Accordingly, in reaching the decision that the dismissals of the employees in the cases of Crisp v Apple and Preece v Wetherspoons were fair, the Employment Tribunals were persuaded in part by the importance of brand and reputation to these employers’ businesses.
Employers should also give some thought as to the dissemination of any potentially damaging material. In the case of Taylor v Somerfield, the Employment Tribunal found that Somerfield’s dismissal of Mr Taylor for being shown in a YouTube clip hitting a colleague over the head with plastic bags was unfair. In doing so, the Tribunal focused on the impact this YouTube clip might have had on Somerfield’s reputation. In this case, the video received only 8 hits and was taken down after three days. On this basis, the Tribunal struggled to see how Somerfield could possibly be said to have suffered any reputational damage.
Top Tip #5: Consider the employee’s history
Employment Tribunals will also give some thought as to an employee’s history in considering the fairness of a dismissal. The otherwise exemplary records of Ms Walters (Walters v Asda) and Mr Blue (Blue v Food Standards Agency) weighed on the Employment Tribunals’ minds in determining that their dismissals had been unfair.
As such, employers should give some thought as to whether the employee in question has prior warnings on their file or if they’ve got a spotless records as this may be relevant, particularly where the infraction is not extremely serious.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.
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