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Employers' rights and obligations with social media

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HCPC guidance on social media - think before you post

When is it reasonable or unreasonable for companies to dismiss an employee for using social media?

It can be a risky, knee-jerk reaction by managers to take such action when they think that by expressing their views on social media an employee is guilty of gross misconduct.

In one tribunal case for instance, the judge found the dismissal of a B&Q’s customer services operative who posted on Facebook that his "place of work is beyond a f****** joke" was unfair as the comments posed no threat to the company. 

Simply, it’s not enough to deem an online comment inappropriate and consequently dismiss an employee. Due to sensitivities around corporate reputation, speedy action may appear justified. However, it is always best to pause, reflect and seek legal advice before taking action. Yes, it is possible to terminate an employment following social media abuse, but businesses need to be mindful of how they proceed.                      

Court proceedings in recent years have shown an increasing number of cases where alleged abuse of social media has been interpreted in ways employers do not expect, such as treating employee behaviour on social media as a freedom of speech issue.

Ultimately, courts have to determine whether it is reasonable to dismiss a member of staff based on what they said on social media and what corporate damage was caused. Those issues will dictate what is a reasonable action against the employee. The court could also consider:

  • How controlled was the social media channel – could only the employee’s friends see it?
  • Was it a personal Twitter/Facebook account but accessed while at work?
  • Was the employee being critical of the employer on social media, but logged on from home? Are they connected to any colleagues who might see the criticism?

Under the Employment Rights Act, a company needs a lawful ground to dismiss someone, to have followed a procedure and to have made a reasonable decision in the context. 

Companies are now beginning to realise the complexities involved in the issue of social media and staff and are taking steps to protect themselves. The key actions to take are:

Establish a robust social media policy

This should explain employees’ responsibilities and obligations when it comes to social media. For example, the company might forbid general staff members from using it during normal working hours. However, teams such as marketing or customer services might have a legitimate reason to stay logged in during the working hours. 

The policy should outline acceptable usage of social media in line with the company’s equal opportunities policy, i.e. not expressing views which are offensive or discriminatory.

It should also make employees aware that use of social media outside work hours needs to be appropriate and, if it calls the company’s reputation into question, could result in action against them.

If the policy is read and understood by staff it will become easier for a business to take action against an employee following inappropriate social media activity. 

Taking legal advice

Court cases have shown that it is possible to dismiss someone for social media activity, as long as a company can justify its decision. Crucially, this requires companies to stop, take a step back and get expert legal advice before doing anything that a tribunal may potentially mark against them.