Most of us are familiar with reports of employees being disciplined for posting inappropriate material on social media platforms, or employers over-reacting and dismissing an employee when a warning or, even, some training, might have been more productive. There seems to be a greater awareness of the risk even if there is not any greater understanding of how to manage that risk.

Either employees hope their posts, tweets, videos and status updates will never come to light or they do not care if they do. Given the abundance of social media platforms these days, that may not be a bad bet. After all, are your colleagues on Path? Or Pinterest? What about Google+, which now seems to be gaining traction two years after launching? According to the website NewMedia Trend Watch, nearly two-thirds of UK internet users have an active Facebook account and that probably explains why most cases that come to light involve unwise status updates on that platform.

What most of the Facebook cases also seem to show is that most cases come to light when a fellow employee, who is “friended” with the perpetrator, brings it to the attention of management. The lesson for disgruntled employees here is that if you want to let off steam, do not do it on Facebook; someone you know might see it. Having said that, what point is there in expressing your views if there is no one around to read them?

There are some trends coming through in the approach that Employment Tribunals take to misuse of social media.

What is becoming clear is that when the employer does become aware of the offending material, it will probably not be possible for the individual to complain that the material was private and thus an infringement of their right to a private life under Article 8 of the ECHR.

Material posted on Facebook, even if posted “privately” should not be seen as private and employees claiming breach of privacy will get short shrift from the Tribunals, as in the case of Taggart v Teletech UK Ltd NIIT/704/11. The claimant argued unsuccessfully that his Facebook comments speculating about a female colleague’s sexual activity was a private matter and his human rights had been breached. The Tribunal refuted this, saying he had harassed the woman and said that comments made on Facebook were in the public domain (following Pay v Lancashire Probation Service [2003] UKEAT 12245/02). Furthermore, the protection provided by Article 9 to express one’s own beliefs was intended to protect “a philosophy, set of values, principles or mores” of that individual, not to allow comment on another person’s sexual activity and Article 10 (right to freedom of expression) will not provide protection if it infringes other persons rights or reputation.

Employers can use evidence found on social media sites as evidence of misconduct as in the case of Gill v SAS Ground Services Ltd ET/2705021/09, where an employee on long-term sick leave (for which she was being paid in full) was held to have been fairly dismissed when the company became aware of her Facebook updates describing her choreographing and auditioning activities at London Fashion Week. Her behaviour was clearly dishonest as she was supposed to be unfit for work as a Customer Services Representative for the company. It followed a fair procedure and her dismissal was held by an Employment Tribunal to be fair. The employer noted that her activities would have had a demoralising effect on other employees at the company who would have known she was on sick leave whilst pursuing these other interests.

In cases where an employee’s social media usage demonstrates dishonest or illegal behaviour, provided an employer follows a fair disciplinary procedure, the dismissal will probably be held to be fair if a challenge is made. The key factor in any disciplinary situation is for the employer to have acted fairly and “within the range of reasonable responses”. This is the test that tribunals apply when considering unfair dismissal claims. There have been several cases on this in connection with social media related dismissals in recent years and each has to be looked at on its own facts.

Derogatory comments on Facebook will not always justify dismissal, even where there is a social media policy in place, as was held in Whitham v Club 24 Ltd t/a Ventura ET/1810462/10. Mrs Whitham, a team leader employed by the Respondent, engaged in an exchange of messages with colleagues on Facebook after a difficult day: “I think I work in a nursery and I do not mean working with plants” and “Don’t worry it takes a lot for the bastard to grind me down”. She also sent a message saying “2 true xx” to the suggestion that she worked with a “lot of planks”. Her messages were only visible to her 50 Facebook friends.

The employer took the view that these comments could damage its relationship with its main client and suspended her and issued disciplinary proceedings. The company appears not to have sought the views of the client and thus the relationship could not be said to have been affected by Mrs Whitham’s actions one way or the other. The tribunal held that this was an unreasonable failing on the part of the employer and for this and also the fact that the employee had a clean disciplinary record, some serious personal issues which provided mitigation for her actions, the company’s client was not mentioned or impacted and she had immediately apologised, they held that the reasonable employer would not have dismissed in this situation.

In another example, a B&Q worker was dismissed for gross misconduct for posting on Facebook that his “place of work is beyond a ******* joke”. He also posted he would do some “busting”, which the employer took to be a breach of its social media policy and was threatening in tone. He had worked for the company for four years and had no previous disciplinary history. Mr Trasler argued that he had had a bad day at work and was letting off steam, whilst showing no remorse at any stage of proceedings. The tribunal held that his employers had acted unfairly whilst reducing the claimant’s compensatory award by 50 per cent. A fair disciplinary process was said to have been followed by the employer (Trasler v B&Q Ltd ET/1200504/2012).

Contrast these two examples with the case of Weeks v Everything Everywhere Ltd ET/2503016/2012, where the claimant was held to have been fairly dismissed for making threats on Facebook to a colleague and describing his place of work as “Dante’s Inferno”, without mentioning the company’s name. A fellow colleague brought the comments to the attention of management, who were concerned that staff morale might be affected and that they were inappropriate. The claimant was unrepentant, continued to post on Facebook in the same vein and made comments (“eat cake bitch”) that made the colleague (and Facebook “friend” who had raised the matter) to feel she was being threatened. He was dismissed for bringing EE into disrepute.

His claim for unfair dismissal failed because the tribunal held that the decision to dismiss was “proportionate to the seriousness of the offence or offences”. It is clear from reading the judgment in that case the tribunal, whilst swayed by the claimant’s truculent approach to his employers when questioned and his refusal to desist from making further derogatory references, were more unimpressed by the threatening comments to his fellow colleague.

It will not be enough for an employer to simply argue that the employee has breached its social media policy. A tribunal will look at the wider circumstances and many competing factors when deciding on the reasonableness of a dismissal decision. Was any harm caused to the employer’s business by the comments? Did other employees raise a grievance or issue proceedings in protest (in Otomewo v Carphone Warehouse Ltd ET/23300554/2011 the claimant successfully sued his employer for sexual orientation discrimination when two colleagues used his own mobile phone to post, as a prank, an unwanted comment relating to his sexual orientation). Did the employee express remorse or remove the offending comment? Did they undertake not to repeat the comments? Was the employee revealed to have been acting illegally or dishonestly in some way?

The lesson for any employer faced with a derogatory comment on a social media platform is to consider what damage the comment has made and to treat the situation in the same way as misconduct in the real world would be treated. If no discernible damage is apparent and the employee is contrite, dismissal may be one step too far, even if the social media policy has been breached. And for employees do not post comments on social media sites in the expectation that the comments are private: there’s no privacy in social media, the clue is in the word “social”.

Michael Scutt is a solicitor at Excello Law Ltd, specialising in employment law. He is particularly interested in social media usage in the workplace. He also blogs at Jobsworth and There May be Trouble Ahead. Follow him on Twitter @michaelscutt.

Email mscutt@excellolaw.co.uk.

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