There has been a rise in reported cases involving social media from employment tribunals in the last year. Most of the cases arise following employee terminations for online posts or comments, which are deemed by the employer to be offensive and acts of gross misconduct. Unfortunately this then leads to claims of unfair dismissal against the employer.
Damage to reputation is a key consideration for employers when dealing with these social media comments, as they can easily be made public, even where privacy settings are in place, as a result of being forwarded on to others, printed off and shared, or intercepted. However, to argue reputational damage as a reason to dismiss, employers will need to show that the risk is real. Making an assumption that reputational damage will automatically follow is not the correct approach.
Many employees claim their right to freedom of expression under the law (Article 10 of the European Convention on Human Rights). However, UK Tribunals have found that certain employee remarks on social media sites are not protected by the provisions of this law, for example ‘Preece v. J.D. Wetherspoons plc’ (ET Case No. 2104806/10) and ‘Crisp v. Apple Retail UK Ltd’ (ET Case No. 1500258/11).
The overwhelming conclusion from these cases for many employers is that social media policies are key if they are to defend a claim. However, to be effective in practice, the policy must 'fit' the business and set appropriate standards to be complied with, in context.
Therefore, employers should:
- Have a social media policy that gives specific examples of the types of conduct their policies target, such as not giving away trade secrets or not disclosing protected customer;
- Ensure they make all staff aware of the policy and its details;
- Follow a fair process when investigation and hearing any case;
- Take appropriate HR advice.
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