Kate Hodgkiss, a Partner in our Edinburgh office, comments: In recent years, the social media phenomenon has continued apace and there is no doubt that it is now an integral part of a significant proportion of businesses in the UK. It has a key role to play in marketing, communicating, training and sharing of ideas and is a hugely successful means of facilitating and delivering these key aspects of modern business. It is also, of course, of huge interest to employees who have increasingly engaged in recent years in sites such as LinkedIn, Facebook and Twitter as well as a plethora of other social media platforms. However, employee use can, and often does, stray outside the purely personal – and that is, unfortunately, where, for employers, problems may lie. Whilst social media’s flexibility, informality and potential to reach an enormous audience is part of its appeal, at the same time it makes controlling and monitoring information an increasingly difficult challenge for employers.
A number of cases have reached the employment tribunal in circumstances where employees have been disciplined and/or dismissed as a result of their social media activity. These activities have ranged from posting sensitive business information, to making derisory comments about the employer; from posting information on leisure activities while on sick leave, to making potentially discriminatory comments.
Tribunals have been cautiously wading their way through the social media quagmire to try and determine what is, and is not, acceptable conduct for employees, and what mechanisms employers need to have in place to effectively protect their business and to fairly discipline their employees. However, until now, there has been no binding authority on the issue.
The EAT has, however, now ruled on its first social media case. In Game Retail Limited v Laws, a senior manager with responsibility for 100 stores was dismissed for posting offensive comments on a personal Twitter account in his own time. The Twitter account was followed, however, by 65 of his stores and the comments were reported by another manager who had seen the tweets. The employment tribunal found that the dismissal was unfair on the basis that it did not fall within the band of reasonable responses open to the employer. Key factors relied on by the tribunal were that the employee had not opened the Twitter account for work purposes and the tweets were made in his own time and on his own mobile phone; the tweets were not work related and did not refer to his employer in any way; the employee had explanations for some of the offensive comments; and no member of the public or the employer’s other staff had access to the employee’s Twitter feed. The tribunal also found that the employer’s disciplinary policy did not have an express clause demonstrating to staff that offensive or inappropriate use of social media in private time could be treated as gross misconduct.
The EAT, however, found that the employment tribunal’s decision was perverse and that the tribunal had fallen into the ‘substitution trap’ of forming its own view on the issues, rather than determining what view a reasonable employer may have formed. The EAT said that there has to be a balance drawn between an employer’s desire to remove or reduce reputational risk, and the employee’s right of freedom of expression. Here, the employee had not made use of the privacy settings on his Twitter account, nor created two separate accounts for personal and work use. His tweets were also accessible by all 65 stores who were following him, as well as by any customers who picked up on the employee’s account. The EAT said that the issue is not restricted to whether the material is derogatory of the employer but whether it is, because of its nature, offensive, and might be going to the employer’s staff and customers. The EAT therefore remitted the case back to a fresh tribunal to consider the matter further.
The EAT expressly declined to issue guidance on social media in the workplace. It said that the test is whether the employer’s decision and the process in reaching that decision is within the band of reasonable response open to an employer on the particular facts. It said that the questions which arise will always be fact-sensitive.
Whilst it is a shame the EAT has not issued any explicit guidance, its reasons for doing so are perhaps understandable. Its findings simply serve to emphasise the importance of employers engaging with social media risks and tailoring policies and procedures to meet the needs of their particular business. Training staff and managers on the provisions is also essential and the terms should be consistently enforced. Key factors to consider in creating a social media policy will include:
- Appropriate definitions
- Parameters of social media use in work time and on work equipment
- Prohibition on harassment, bullying or discriminatory conduct
- Restrictions on disclosure of business sensitive or other confidential information
- Restrictions on identification of individual as an employee of the employer
- Application of privacy settings
- How social media activity will be monitored
- Warnings on consequences of breach of the social media policy and that serious breaches may lead to summary dismissal
- Reminder to use grievance procedure for raising work-related complaints or concerns