Social media has expanded rapidly over recent years. It allows people to share information, ideas and views and is important for both individuals and businesses. Once more it can also distort the boundaries between home and work and this has been a key consideration over the last few years, and drawing this line can be difficult for employers. Where is the line between posting on social media as a representative of your company and as a private individual?
There are misperceptions over what is acceptable behaviour regarding the use of social media. Some employees feel that they have the right to do and say as they wish outside of work on social media sites, but often they do not realise the implications of making derogatory comments about their employer or even other colleagues. Some estimates report that misuse of the internet and social media by workers costs Britain’s economy billions of pounds every year.
In the recent case law of Plant v API Microelectronics Ltd, the tribunal made a controversial decision, rejecting the unfair dismissal claim of a long-serving employee with a clean disciplinary record who was dismissed over comments she made on Facebook about her employer. Similar cases in previous years such as Creighton v Together Housing Association Ltd and Trasler v B&Q Ltd were not so harsh bringing us back to the question of where the boundary lies between posting as an individual or as a representative of the company, and further to this where do we draw the line between gross misconduct and misconduct?
The difference in definition between misconduct and gross misconduct is crucial to whether a dismissal will stand up to the scrutiny of an unfair dismissal claim. In arriving at a decision, tribunals look to many different factors to determine whether a dismissal was fair or not, of course the particular facts of the case have influence, however the primary consideration is:
Did the employer’s decision to dismiss fall within the band of responses a reasonable employer would have adopted?
The wrong doings of employees, when it comes to social media, are often unashamed, inappropriate and easily attributable to the employee so it is often thought that establishing misconduct is straight forward. Unfortunately this is not the case. In light of the decisions in the above cases, when taking decisions to dismiss employers should make sure that they do not focus merely on what is said, to also focus on the effect of the statement on the business and its employees. Tribunals are likely to be looking for evidence of how offensive or undermining the statements are alongside whether the business may be adversely affected.
When assessing what is ‘reasonable’ in the circumstances, it is crucial for employers to give clear guidance to employees as to what is appropriate and make them aware of the consequences they could face. Absence of clear guidance to employees as to what such values are may well mean the dismissal could be unfair as in Crisp v Apple Retail (UK) Ltd (2011).
With the use of social media expanding rapidly, the harder the line an employer wants to take on use of social media, the greater the need to make clear to employees what constitutes gross misconduct and the need for a clear social media policy within their employee handbooks and guidance into their own disciplinary procedures. The wording of the policy may not be sufficient on its own to constitute a dismissal, in all cases the circumstances as a whole must be taken into consideration.
If you are concerned about your company’s disciplinary policies and procedures, or an employee recently dismissed due to a social media post, our employment team at Stephensons can be of assistance to you by enquiring on 01616 966 229.
By Anna Blythe graduate paralegal, employment law department.