Employees’ misuse of social media

What should employers be doing to avoid damage to their reputations and employment relationships?

Employment lawyers are finding themselves advising clients more and more frequently on employees’ misuse of social networking sites. Issues have arisen over employees posting photos of themselves at parties when they were supposed to be too unwell to attend work, or employees making inappropriate comments about colleagues and their employer on Facebook.

The following examples of employee ‘social networking’ behaviour all have one thing in common: they resulted in the individuals in question being dismissed.

Preece v J D Wetherspoons

A pub manager was subjected to abusive behaviour by two customers, whom she asked to leave. She then received three abusive phone calls from the customers' daughter, using insulting language. Having dealt with these situations professionally, the manager complained about the customers, by name, on Facebook while working. She did not mention the name of her employer or the pub. (Case ref ET/2104806/10)

Gosden v Lifeline Project

An employee sent an offensive email from his home computer to a colleague’s home computer. The message, which contained material of a racist and sexist nature, was a chain email headed “It’s your duty to pass this on!” Because he sent it to a colleague, the email entered the employer’s computer system. (Case ref ET/2802731/2009)

Simonetti v Delta Air Lines

A flight attendant wrote a blog entitled ‘Diary of a flight attendant’ and posted photos on it of herself in her uniform. The photos showed her relaxing on a plane between flights and her leaning over a seat showing some of her underwear.

Stephens v Halfords

An employee off work due to stress attended consultation meetings regarding workplace reorganisation. The employee was aware that such meetings were confidential until the process had been completed. Feeling that the company’s website did not provide an unrestricted forum for debate, and following completion of the group consultation process, the employee created a page on Facebook to continue the discussion among employees. After noting the company’s policy on social networking sites, the employee removed the Facebook page. (Case ref ET/1700796/10)

Taylor v Somerfield

An employee posted a video on YouTube of himself and two of his colleagues play fighting with plastic bags in the company warehouse (unreported EAT 2007).

Tribunal decisions

The misuse of social media will not always justify dismissal. The last two examples were held by employment tribunals to be unfair. Stephens, the employee who created the Facebook page, had six years’ service and a clean disciplinary record. The tribunal held that no reasonable employer could have concluded that dismissal was an appropriate sanction, particularly given that he had apologised for his actions and removed the offending page as soon as he realised it was grounds for disciplinary action. He was awarded £11,350 in compensation.

The dismissal of Taylor, the employee who posted a video on YouTube, was also considered unfair as the video only received eight hits and there was no evidence that the employee’s behaviour had brought the company into disrepute.

Sign of the times

We can expect to see more of these types of cases hitting the headlines in the future. It is essential that organisations protect their business from the poor publicity this inevitably brings about, and from any liability arising from the harassment and bullying of other employees via social networking sites.
A good IT policy is essential. It must address behaviour both in and outside the workplace, including social media. The limits on what an employee can do outside the workplace should focus on potential damage to the business's reputation or that of its customers, and other commercial partners.

It is worth being specific but at the same time the policy will also need to be general enough to cover new technology and fads which may not exist at the time the policy is drafted. It should also clearly set out where disciplinary action, including dismissal, may result, stipulating what actions are, or may be considered, gross misconduct. Organisations may also wish to include guidance regarding the use of social media for business purposes.

Employers should:
• communicate to employees the organisation’s expectations in relation to social networking sites
• educate employees by making them aware of the impact their actions could have
• be reasonable when deciding on the appropriate sanction to impose.

Source People Management