Social media can be a useful tool to advertise, market and inform, but with this great power comes great responsibility. All too often an ill judged post can have a huge effect on employees and employers alike, as Danny Baker found out recently after being dismissed by the BBC following a twitter post which was considered racist. This blog takes a look at some of the issues employers face with social media in the workplace.
Social media now affects communications among managers, employees and job applicants; how organisations promote and control their reputation; and how colleagues treat one another.
Acceptable Use
There can, to a degree, be some confusion over what is acceptable behaviour regarding the use of social media by employees. The prevalence of social media has somewhat distorted the boundaries between work and home. For many employees, the belief that they can essentially say what they want in their personal capacity (and outside of work) is overriding. However, many don’t realise the implications and repercussions that making derogatory comments or remarks about colleagues or their employer may have. Employers can’t control what their employees say in their personal capacity but clear guidelines ought to be in place to ensure there is no confusion over what is and what is not acceptable social media use.
An employer should include social networking in their discipline and grievance policy, giving clear examples of what will be regarded as gross misconduct – for example, posting derogatory or offensive comments on the internet about the company or work.
Disgruntled employees can often take to social media to vent their frustrations over situations that have arisen at work. When the employee also posts comments or photos which identify them as an employee of the company they work for, there is the potential for this to affect the employer’s public reputation.
It is important for employers to be specific about what behaviour on social media is acceptable and what is not and important to highlight that any comments made on these platforms will be treated in the same way as if they were made in the workplace and if appropriate through a disciplinary process.
Misconduct
One of the main issues which arises in relation to social media posts is disciplinary action for misconduct. Previous tribunal and court cases have highlighted that there are no specific rules for cases concerning social media and they should be handled as any other case of misconduct. However, the nature of social media posts mean there are a number of factors which may need to be considered when an employer is deciding on disciplinary action. These may include:
- How visible the social media post is – factors such as how many friends or followers the employee has and the privacy settings of their profile which affect how many people may have seen it should be considered. It is more likely to be considered unfair to take action if the reach of the post is minimal;
- Whether the employee is identifiable from the profile as an employee of the employer;
- The level of actual harm or reputational damage;
- The employee’s expectation of privacy (which again may be related to the level of privacy settings on their social media profile);
- Whether there is a policy in place making clear what the employer’s expectations are in respect of social media use.
Discriminatory comments
Another potential concern is social media posts by employees which are discriminatory, as anything done by an employee may be treated as done by their employer, who will be vicariously liable.
Employers will only be liable for employees’ discriminatory actions if these are done “in the course of employment”. This is given a wide meaning and can include conduct that takes place off premises and out of normal working hours, depending on the circumstances.
A recent case considered this issue. The Employment Appeal Tribunal in Forbes v LHR Airport Limited had to consider whether an alleged act of harassment was done within the course of employment. The case related to an employee (A) who had posted a racist image on their Facebook page. This was shown to the Claimant by one of her colleagues (B) who was friends with colleague A. The Claimant raised a grievance, which resulted in colleague A being disciplined. The Claimant subsequently complained about being rostered to work with colleague A, and was moved to another location. The Claimant made claims for harassment, victimisation and discrimination on the grounds of race. These were unsuccessful on the basis that colleague A had not acted in the course of her employment: she had not posted the image while at work or on a work computer, it made no reference to her employer, and was shared among a private group which did not include the Claimant. The EAT upheld this decision on appeal.
It is worth noting that the alleged act of harassment in this case was the posting of the image. It being shown to the Claimant by a colleague arguably had a stronger connection to the workplace, but was not argued before the tribunal. Had it been, the decision may have been different. This case illustrates that cases involving social media posts are very fact specific, and it is important for employers taking action to consider all the circumstances carefully.
In discrimination claims, there is a defence available to an employer if it can show it took “all reasonable steps” to prevent the employee from doing the discriminatory act. To establish this it would be advisable to:
- Have a policy in place to deal with social media issues,
- Provide training on the policy
- Deal with complaints promptly and consistently
What can be done?
The best approach an employer can take to ensure that any issues are dealt with quickly, is ensuring they have a straightforward social media policy in place and that it has been clearly explained to employees. This helps set out in black and white what online conduct is acceptable and what is not. It also gives the employer some protection in the courts should they need to go down the route of a grievance or disciplinary process.
For more information and guidance on developing your companies social media policy and other related issues, please speak to a member of our Employment team today.
