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.

Social media can facilitate access to a very large audience, including members of the public, or potential customers, or clients.

This presents a huge business opportunity, but the flip-side is that it also creates a risk. There can be a danger of negative publicity, or damage to the employer’s reputation, if staff are seen to misbehave or are not spreading the ‘right’ message. In some situations, disciplinary action may be appropriate.

Bad news travels quickly. It is incredibly difficult to predict which messages or Tweets will ‘go viral’, but for those that do, a negative comment from an employee can suddenly become headline news.

Although the individual might only have shared it with their 40 friends or followers, it might be picked up by someone with a far greater reach. The nature of social media means that it is easy to spread and share information in this way.  Some of these issues were raised in the following case:

• Taylor -v- Somerfield Stores 2007: employees filmed a video showing them hitting each other with Somerfields-branded plastic bags in the store’s warehouse. The Tribunal held that their dismissals had been unfair; the company sought to rely on the risk of reputational damage, but the lack of evidence of any such damage was fatal to this argument. The video was available online for 3 days and was only viewed 8 times, of which at least 3 views were the senior management team investigating the incident. The company had decided to take a very tough line owing to a previous, similar, incident but this new approach had not been communicated to staff, and could not therefore be relied upon.

Damage to reputation

Often the ‘reputational damage’ argument is run in situations where the employee makes offensive comments on social media. These comments may not be work related, but nonetheless are a cause of concern for the employer:

• Adrian Smith -v- Trafford Housing Trust 2012 concerned an employee who posted comments on his Facebook page to the effect that he was against gay marriage. He listed his job title (Housing Manager) on his page and allowed ‘friends-of-friends’ to access it, so it was not strictly private. The Trust demoted Mr Smith on the basis of his views; this was subsequently held to have been a breach of contract by the Trust, as his Facebook page had not acquired a work-related context.
• Game Retail Ltd -v- Laws 2014 concerned 28 offensive messages posted by the employee (a risk and prevention investigator, responsible for about 100 stores) on Twitter. The messages were directed at a family member and many were about football. Mr Laws was dismissed, and the EAT held that this was fair. Although it was his personal Twitter account, he used it to follow Game stores in his ‘patch’ for which he was responsible (65 out of a possible 100 stores followed his account, and he was well aware of this).

A key distinction is therefore whether the remarks fall within the ‘public’ or the ‘private’ sphere. This is a concept which the courts have struggled with to date, and we are likely to see further cases in this area.

Factors like whether the individual has introduced a ‘work-related context’ will also be relevant.

There is a big difference between a private Facebook page and someone who has 12 friends, compared to a publicly visible page belonging to someone with 500 friends.

Arguably Facebook (with the right privacy settings) can be more private / less public than Twitter, which is generally visible to the public at large. Factors like whether the individual has introduced a ‘work-related context’ (such as in Game Retail, above) will also be relevant.

Other types of misbehaviour

Additionally, social media (and emails!) can reveal other misdeeds to the employer, which may justify the employer in taking disciplinary action.

• Williams -v- Leeds United Football Club 2015: Mr Williams was summarily dismissed after it was discovered that he had forwarded a pornographic email to a junior employee and two external contacts. It was held that the conduct was sufficiently serious to amount to a repudiatory breach of the implied term of trust and confidence, even though the emails had been sent five years earlier and two of the three were only discovered after he had already been dismissed, and as such the dismissal was fair. This was so notwithstanding the fact that there had been some suggestion that the employer had been actively looking for evidence of previous misconduct to avoid having to pay Mr Williams during a 12 month notice period.
• British Waterways Board -v- Smith 2015: It was discovered that a number of years previously, Mr Smith had made comments on Facebook about drinking alcohol while on standby (which was prohibited). The EAT held that his dismissal was fair; when Mr Smith was on standby he was in a position of trust, and posting comments in which he claimed to be drinking (whether he was or not) would damage the confidence that the public and Mr Smith’s colleagues could place in him, and potentially damage the employer’s reputation. British Waterways was therefore entitled to treat this as a serious matter, notwithstanding the fact that the comments had been made some years before and there had been no allegations of alcohol consumption while on standby in the intervening period.

In the context of social media revealing ‘misdeeds’ of the employee, the recent case of Metroline West -v- Ajaj 2015 is potentially a useful precedent, as it confirmed that that ‘pulling a sickie’ can be grounds for gross misconduct.

If this is so, then it raises the possibility that an employer could take disciplinary action if social media reveals that an employee who is ‘off sick’ is actually at a sporting or social event or that there are other grounds for believing the employee was faking their illness.

‘Pulling a sickie’ can be grounds for gross misconduct.

Bear in mind however that a fair procedure must be followed and any allegations should be thoroughly investigated - e.g. a doctor might have recommended that a depressed employee should go on holiday or take up a new activity or sport. Photos of the employee doing as instructed will not be evidence of gross misconduct.

In the next article in this series, we will consider the steps that employers can take to mitigate the risks by creating a comprehensive social media policy.