As well as individuals, most businesses now have their own social media presence, but these new channels bring their own potential problems. In this series, Social media policy & law: a guide for HR, we'll share some examples of employee misbehaviour, changes to law & organisational policy off the back of these incidents, and what businesses can do to protect themselves whilst not limiting employee trust & freedom.

For any type of company, maintaining a social media presence and encouraging employees to be active on digital channels can provide a wealth of benefits and opportunities.

However, there are associated risks - not least of all because employees may access their accounts at work, or post work-related content in their free time. Companies may be liable, or may want to take disciplinary action, for what their employees write on their official or personal accounts. Much will depend on the circumstances of each case.

As a starting point, employment law will apply in this context as in any other, and employers should follow general good practice. There are no special rules for social media cases - rather, existing principles are applied in a new context.

Freedom of expression...or not?

One aspect which is particular to the social media context is the frequency with which Article 8 and Article 10 arguments are raised.

Article 8 of the European Convention of Human Rights (ECHR) sets out that an individual has a right to respect for his privacy and home life. In some cases employees have argued that certain activities fell within the ‘private’ sphere of their lives. Article 10 ECHR protects the right to freedom of expression, and again, employees have sought to rely on it to demonstrate that they have a right to make certain comments. Employers should be aware of this when contemplating any action in respect of use or misuse of social media.

The law in relation to social media is still developing and it is important to keep up to date. For example, it was held in a recent case in the US (Ortiz -v- Hispanics United of Buffalo, Inc.) that when a group of employees formed a private Facebook group and started discussing how to respond to various complaints that had been received (concerning their performance at work), this was actually capable of amounting to a protected act under US labour legislation. It was potentially the first step towards collective action.

A group of employees formed a private Facebook group and started discussing how to respond to various complaints

A similar result might be reached under UK law, illustrating that employers should be careful to avoid knee-jerk reactions in instances of staff coming together online through the medium of websites like Facebook.

Employees complaining about work/customers

Posting comments on social media about a bad day at work seems to have become the modern equivalent of a private conversation with friends down at the local pub. The difference is, these online comments potentially have a much wider reach - and the employer will be concerned to be seen to be taking action.

Employees may wish to note that in most of the cases in this area, the inappropriate comments are reported to the employer by their 'friends'. This may be a function of the fact that many social media ‘friends’ would be more correctly classified as acquaintances - individuals often post something without thinking about who might read it, and are less careful than they might be if they were speaking to someone in person.

Individuals often post something without thinking about who might read it

Some interesting examples, showing the approach of the courts to this sort of behaviour are as follows:

• Young -v- Argos 2011: Ms Young ‘liked’ a Facebook comment stating that her manager was ‘as much use as a chocolate teapot’, and commented that this had been the worst year of her fifteen year career with Argos. She was dismissed for gross misconduct. The Tribunal held that this was unfair, as no reasonable employer could have concluded that her comments amounted to gross misconduct. They weren’t serious enough to amount to bullying or harassment either, being merely ‘workplace gossip or routine criticism’.
• Preece -v- Wetherspoons 2011: Preece, a manager of Wetherspoons, was dismissed for making derogatory comments about customers. She had received verbal abuse from the customers in question, and took to her Facebook page to vent her frustration: “I hate f…in people”, “Sandra and Brian barred ha ha”. The comments were seen by Sandra’s daughter, who made a complaint. The Tribunal held that the dismissal was fair, as there had been a full investigation and the company’s internet policy expressly prohibited making such comments about customers.  Dismissal was within the range of reasonable responses.
• Whitham -v- Club 24 2010: Ms Whitham was employed by Club 24 as a team leader for Skoda customer services. Ms Whitham worked closely with an employee from Volkswagen (which owns Skoda). She posted on her Facebook page, “I think I work in a nursery and I do not mean working with plants”. She was reported to management and dismissed – Club 24 stated that her comments could have been detrimental to its relationship with Volkswagen. The Tribunal held that this was unfair, as there was no evidence of any adverse effect on the relationship and it was unlikely that such a large company would terminate a commercial agreement because of relatively mild comments made by a junior employee, particularly where those comments didn’t even name Volkswagen specifically. The decision to dismiss was unreasonable.

These cases show that employment tribunals are taking a pragmatic approach, assessing each case on its facts in order to determine whether the conduct is misconduct or gross misconduct, and whether there is any real risk or damage to the employer’s reputation. Employers will generally need to do more than simply assert that conduct would be damaging. The nature and gravity of the comments will be influential as well.

Employers will generally need to do more than simply assert that conduct would be damaging.

It seems fairly obvious that an employee vocally complaining about their workplace or insulting customers (on social media or in fact by other outlets) is likely to run into trouble. The cases given above illustrate some of the situations in which it can be appropriate for an employer to take disciplinary action.

In the next article in the series, we will look at some of the other (more subtle) forms of misbehaviour on social media, and how employers may still be able to take action if there is a risk of reputational harm.