Social media has become a staple of our collective sub-conscious – from breakfast choices to a weekend selfie, these things were made for sharing.
But, as we know all too well, some people over-share. And while this can create workplace headaches, it may also provide employers with valuable insight, for example in discovering misconduct, exposing absenteeism or addressing reputational damage caused by employees. So how can you deal with these situations and avoid the potential pitfalls?
Social media provides fertile ground for offensive comments or discriminatory remarks, yet the divide between the workplace and an employee’s private life is not easily drawn.
This point was recognised in Forbes v LHR Airport Limited. An employee shared a racially offensive image on her personal Facebook page with the line “Let’s see how far he can travel before Facebook takes him off.”
This was shared with the employee’s friends, including a work colleague. The Employment Appeal Tribunal (EAT) concluded this had not been done in the course of employment and, therefore, the employer was not liable for the employee’s actions. However, it made clear, that it could not lay down any hard and fast guidance; each case depends on its own facts.
Conversely, in Laws v Game Retail Ltd, an employee used Twitter to broadcast abusive and offensive tweets outside of work hours and was consequently dismissed by Game on the grounds of gross misconduct. The EAT found that the dismissal was potentially fair and held that the correct test was whether the employer was entitled to conclude that the tweets might offend customers or other staff.
Whilst employers do not want to be liable for what their employees do in their spare time, they also need to be able to act over misconduct, so they have to balance these competing interests carefully.
Suppose your employee is absent due to sickness, but an image on Facebook shows they were happily enjoying a music festival. What then?
Do you have an accurate picture of your employee’s health? Just because they’re absent, they are not obliged to be at home under their duvet – recovery from a period of stress could be helped by social activities. So you need to consider all the evidence; for example what the photographs show, when they were taken and whether the behaviour is out of character for the employee.
Employers must consider what the behaviour demonstrates; does it show dishonesty (and therefore misconduct) or does it show poor decision making by the employee about their health (and thus, perhaps a capability process is more appropriate). Ultimately, the employer should scrutinise the evidence and determine its value.
Addressing reputational concerns
Suppose an employee expresses an unsavoury opinion on Facebook. How does their right to free speech interact with the employment relationship? What if the post does not, of itself, constitute misconduct but nevertheless reflects poorly on the employer? In such cases, an employer may want to consider taking action for “some other substantial reason” (a fair reason for dismissal under the Employment Rights Act 1996).
This issue arose in Gibbins v British Council, a case involving a senior employee who posted a derogatory comment about Prince George, believing that only her 150 Facebook contacts would see the post.
But it attracted media attention, and Ms Gibbins was dismissed. A tribunal concluded her dismissal was fair because her actions were a “distasteful and personal attack” and that this brought the reputation of her employer into disrepute.
Having a robust policy helped in Preece v JD Wetherspoons plc. An employee posted rude comments about customers on her personal Facebook page. Wetherspoons had included derogatory comments on Facebook as an example of gross misconduct in their disciplinary policy, which aided them in justifying the dismissal.
Ultimately, the law recognises the difficulties for employers and enables businesses to protect themselves from the misuse of social media. What is important is to understand the complexities and adopt an approach which can withstand any challenge.
Top social media tips for employers
Tips for employers dealing with the challenges of social media:
• recognise that employees, generally, have the right to express themselves, providing it does not infringe on the employment relationship
• ensure policies adequately address and highlight acceptable use of social media (including outside work use)
• consider issues concerning GDPR and human rights
• preserve evidence in case posts are deleted
• conduct a thorough investigation if you suspect foul play
• follow a fair disciplinary process, (and ensure it is fully documented)
• consider training for those employees running social media accounts for the business.
When dealing with evidence of behaviour during sick leave, also:
• consider the full picture – an employee with a fracture would not usually check into a ski resort, but an employee with depression may benefit from a camping trip
• discuss the findings with the employee
• request further details about the alleged illness or seek evidence from a GP if you suspect malingering
• have clear sickness absence and disciplinary policies in place.