The surge in employees dismissed as a result of misuse of social media has sparked much debate, particularly amongst those surprised by how employers have responded and disciplined employees. Helena Woodward-Vukcevic, an employment law specialist at Hart Brown, discusses.
The guidance given to employers in a recent report commissioned by ACAS, is to treat “electronic behaviour” in the same way as “non-electronic behaviour“. Where employers can experience particular difficulty in managing social media is where there is no clear divide between what is an employee's professional and an employee's personal use.
As businesses increasingly use social networking sites to communicate with their customers, to promote products and services and to increase brand awareness. Its use amongst employees is often actively encouraged but what happens where an employee expresses a personal view that is not in line with the company, tweets something that may be offensive or defamatory, or simply where an employee leaves the organisation and takes their “followers” and or “connections” with them and when is disciplinary action warranted? It is likely that disciplinary action will be taken in relation to any comments or criticism posted online if they are damaging to the employer's business or offensive to other employees. Employers should have clear guidelines and policies in place addressing the potential consequences in terms of the disciplinary action that may be taken as a result of posting any damaging statements. Policies should also make it clear to employees how seriously they treat brand reputation. ACAS advises employers to react reasonably to issues around social networking by considering what is the likely impact on the business. Will derogatory or defamatory comments posted about an employer warrant dismissal?
To justify dismissal an employer will be required to show damage to their reputation or business. As with the usual principals that apply in defamation, the potential readership will also be relevant. The problem with social media networks is a greater likelihood of those comments becoming public but at the same time employers should be careful to not automatically assume that an online comment will be viewed by thousands. Comments that cause substantial damage to an employer's business or reputation could also amount to a breach of the implied duty of mutual trust and confidence and therefore warrant a dismissal. Are employers being over sensitive when it comes to social media? The BBC is one organisation that has recently had to review its Social Media policies as a result of the rise in disciplinary action being taken over social media. This has included warnings given to some employees that had made critical comments about the broadcasting corporation on twitter and in blogs. Virgin Atlantic have also disciplined and dismissed members of staff for making negative comments about their passengers as well as criticising safety policies. Recent Disclosures under the freedom of information act reveal that the DVLA have made a number of dismissals in connection with their employees complaining about the organisation on Facebook.
Inappropriate comments or offensive statements that are incompatible with the employers approach to equal opportunities may also warrant disciplinary action. To reduce the risk of damage caused by non-work related tweets or posts online employees must ensure that they cannot be linked to the employer. There will clearly be a case for disciplinary action where the link to a particular employer is readily identifiable. Are employers being over sensitive when it comes to social networking? An employer is vicariously liable for the acts of its employees which occur in the course of employment. In the absence of any specific guidance, employers should assume that ordinary misconduct principles will apply. An employee's conduct, including that evidenced by incriminating Facebook photos will not necessarily be disregarded simply because it takes place outside working hours. The Employment Appeal Tribunal has previously held that conduct does not have to occur in the course of work, or at the actual place of work, or even be connected with the work, so long as it affects the employee, or could be thought likely to affect the employee, when doing his work Singh v London Country Bus Services Ltd [1976] IRLR 175.
However, employers will also need to give consideration to balancing this with the employee's right to privacy under article 8 of the Human Rights Act 1998 where the employee can show that the content is genuinely private in nature. If Article 8(1) is engaged, it is still open to a tribunal to find that the employer's decision was justified in accordance with Article 8(2). With regards to social networking for business purposes, who has ownership of an employee’s LinkedIn account where connections may be clients or contacts of the employer? Many contracts of employment contain post termination restrictions in connection with protecting the employer’s contacts and client lists. Employers will seek to enforce these against employees that they consider are in breach of covenant, if there is a legitimate business interest to protect and have suffered loss as a result of the employee’s breach.
So could an employer argue that a social networking site is a customer database? An employee could potentially amass hundreds of followers or connections on a social networking site, whilst working for any particular company and these may consist of customers, clients and suppliers. It is quite possible that there will be cases brought against former employees who retain online connections or followers with them when they move jobs. Policies can be put in place whereby an employee removes these contacts on their departure. A former BBC employee changed her Twitter account to reflect a move to ITV, prompting an analysis of the BBC's guidelines on blogging and as to who possesses the right to followers on social networking sites after much debate about whether the rights to her 60,000 followers were vested in the employee as an individual or as a BBC reporter.
If damages were awarded in Court against an employee in these circumstances it could set a precedent for assigning a commercial value to Twitter followers and LinkedIn connections acquired in a business context. An employer would need to establish that the list of followers or connections constitute a customer database or a trade secret. This may be more difficult with Twitter due to the nature of it being a public account with a 'followers' list compiled of public Twitter members so it is arguable as to whether this could actually be considered confidential. This could be based upon an estimate of how much each follower is worth to the company and the costs and resources invested by into growing its followers and intent to protect customer lists.
Employers should ensure they have comprehensive social media policies in place that are updated regularly and provide clear guidance of what is intended to be protected ie confidential information, relationships with clients, customers and suppliers, reputation and how this may be compromised by social media and guidance preventing employees from posting anything that might be discriminatory or defamatory. This does not mean employers should impose unnecessary restrictions or blanket bans on the use of social media in he workplace. Social networking is not without its pitfalls and for many employers it has presented new challenges in having to deal with a variety of issues that can arise from potential misuse. Adhering to ACAS guidance of treating social media-related misconduct in a similar way to other misconduct should assist employers in managing an issue that might arise, reasonably and fairly.
