I am regularly asked about employees, their social media posts and what an employer could potentially do if it’s damaging to their business. My advice is to always have a good social media policy in place to support what you do and don’t want your employees saying on and doing on Social Media and to ensure they are trained to understand this policy, this is from a best practice point of view. From a legal point of view I would and do go to Langleys Solicitors for advice as they’re the experts.
The blog below has been written by Danielle Lister (photo to the right), Associate Solicitor specialising in Employment Law at the Lincoln branch of Langleys Solicitors. Please read and consider your business! Get in touch with any questions but be prepared to have your eyes open as to what you can and cannot do.
Social Media in unfair dismissal claims
It is a fact of life that most people at some point will complain about their job. Ten years ago these complaints would probably be limited to the employee’s friends over a beer or a glass of wine on a Friday night. Now with social media these complaints can very easily be broadcast to other employees, clients and beyond.
This causes a tough balancing act for employers balancing on the one hand their employee’s right to privacy and on the other protecting the reputation of the business.
There are 2 clear lessons to take away from the cases decided in the Employment Tribunals in this area;
- The employer should take a sensible view on the damage or potential damage done to their reputation; and
- A robust policy in relation to employees use of social media is vital to ensuring that any dismissal is classed as fair.
A good example of this is the case of Taylor v Somerfield Stores. In this case a manager of a Somerfield store manager posted a YouTube video of an employee in uniform being hit with a bag full of plastic bags. The video only received 8 hits; the manager took it down after 3 days; he apologised and also had a clean disciplinary record. Despite this, his employers sacked him for gross misconduct.
The Tribunal in this case found that it was clear there was very little damage to the employer in view of the limited views of the video and also considered the previous good conduct of the employee. They deemed that the dismissal was an unfair dismissal.
In another case involving a supermarket: Walters v Asda Stores Ltd the Tribunal decided that comments by a manager that it would make her happy to hit a customers heads with a “pic axe” amounted to misconduct, rather than gross misconduct which was worthy of dismissal. This was because Asda’s disciplinary procedures classed comments of this kind as misconduct rather the gross misconduct. Asda had argued that as a manager the employee was held to a higher standard than more junior employees but this was not expressed in their procedures and therefore this argument was not accepted by the Tribunal.
This can be contrasted with the case of Crisp v Apple Retail. In this case the employee was dismissed for a number of posts complaining about the quality of Apple products and the Tribunal agreed that this was a fair dismissal. The crucial difference in this case was that Apple stated the importance of its image to all employees during their induction and in their employment policies. Its disciplinary procedure also made clear that derogatory comments about Apple made online would constitute gross misconduct.
So have a look at any policies you may have in relation to employee’s use of social media and ask the question: do these policies actually cover what you want them to? If you don’t have any policies in place, then implement one as soon as possible. One of the main obstacles for employers in cases involving social media is a lack of any policy in place explaining the employer’s expectations and warning of consequences if the policy is breached.
The harm to your business
Finally if a situation does arise with an employee, think about what harm has been done to your business. Comments by employees can be embarrassing but in the Somerfield case only 8 people viewed the video; yet the number of people who have subsequently read about the unfair dismissal of their employees is significantly more. Which of these events do you think is the most embarrassing for Somerfield?
For further employment advice contact Danielle Lister on 01522 888555, via email firstname.lastname@example.org or check out their website at www.langleys.com
A huge thank you to Langleys Solicitors for this blog post please check out their website and get in touch with them if you need any employment advice.
Featured image created by Jake Fischer – Check out his facebook page here