You only have to look at President Trump’s Twitter postings to understand what a powerful – and thorny – tool social media and employment can be. By its nature, it can be accessed by anyone with an internet connection. For employers, this can be worrying as disgruntled employees sometimes take to sites such as Twitter, Facebook and LinkedIn to vent their frustrations.
This article highlights the legal cases which demonstrate that there is some hope for employers.
Weeks v Everything Everywhere Ltd
In Weeks v Everything Everywhere Ltd, Mr Weeks published a number of posts on his Facebook page that compared his workplace to “Dante’s Inferno”. His comments included: “No Dante’s Inferno for this happy fatty today” and “Another day at Dantes [sic], fat lad living the dream, hope you all have a better day than I’m going to have”. When confronted by his line manager, he refused to refrain from making these type of posts in the future. He subsequently made similar comments online and was dismissed for breaching the company’s social media policy. Mr Weeks claimed unfair dismissal. The tribunal concluded that the comments, which had been made over a long period of time, were “likely” to cause reputational damage if they continued and that the employer’s response had been reasonable.
Game Retail Ltd v Laws
In Game Retail Ltd v Laws, the employee had created a private Twitter account and followed 100 Game retail stores; 65 of the stores had followed him in return. He had set his privacy setting to public so that his posts could be viewed by anyone. He subsequently made a number of tweets relating to Newcastle supporters, A&E workers, dentists and “t**** in caravans” which his employer regarded as obscene and threatening. He was dismissed for gross misconduct. A claim for unfair dismissal was not upheld by the Employment Appeal Tribunal (EAT). The ruling noted that the fact the employee had used his private Twitter account to follow other Game stores, and allowed them to follow him in return, compromised the argument that his tweets were entirely private and did not impact on his employer.
Creighton v Together Housing Association Ltd
The Creighton v Together Housing Association Ltd case highlights the potential permanency of comments made on social media. Mr Creighton was a line manager who had a grievance raised against him by an employee he managed. Part of the complaint was that Mr Creighton had made derogatory comments towards other employees on his open Twitter account. The investigation found tweets posted two or three years previously and Mr Creighton, who had almost 30 years’ service, was dismissed as a result. The tribunal rejected his claim that he had been unfairly dismissed.
Managing social media and employment
Whilst these cases found in favour of the employer, companies shouldn’t become complacent. There are a number of steps that you can take to bolster your position and help to justify any action you take following a negative social media posting by an employee.
One of the key measures you should introduce is a clearly worded social media policy which sets out the standards of conduct expected from staff in relation to this form of communication. It should be made clear that any breach could warrant disciplinary action, up to and including dismissal.
As soon as you’re aware of a negative social media post by an employee, take steps to capture any evidence that can be subsequently referred to should disciplinary action be necessary. This could include taking screen shots of the offending post, recording details of any complaints received from other employees or customers, and documenting any evidence of loss or damage suffered by the company as a result of the posting. Details should also be taken of how widely the post has been read, together with a note of the number of “followers” or “friends” the employee has.
You will then want to take steps to try and remove the material. The easiest and most effective way of achieving this is to simply ask the employee to delete the offending post/tweet. You can then determine whether disciplinary action is appropriate.
Social media is now a popular and frequently used communication tool. The cases detailed above have shown that simply because a negative work-related comment is made on a personal Facebook or Twitter account, it doesn’t prevent you from taking appropriate steps against the employee concerned, particularly when it’s likely that the content could cause reputational damage to the business.
If you would like advice on your company’s social media policy or any other HR issues, please contact Fitzgerald HR on 01271 859 267 or email office@fitzgeraldhr.co.uk
