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Smartphones, internet, social media sites, e-mails, tweeting, blogging – we have accepted all of these innovations as part of our working and daily lives – they help us to work more flexibly, stay in touch for longer and respond to each other more quickly.
But several surveys and employment tribunal cases, from varying perspectives in the UK and globally, have shown that employers need to provide clear guidance to staff regarding how they use social networking sites, to ensure staff use the sites responsibly and are careful about what they say online.
Some estimates report that misuse of the internet and social media by workers costs Britain’s economy billions of pounds every year and add that many employers are grappling with issues like time theft, defamation, cyber bullying, freedom of speech and the invasion of privacy.
However, social media has increasingly been used by companies to share information and network with colleagues, the public, as well as to source new talent and check out potential candidates – and this can also cause problems.
So how should employers and staff respond to the challenges posed by social networking tools at work?
As it can be common to ‘over-share’ personal information online it is inevitable that recruiters might be tempted to have a look at the digital lives being led by potential employees of their company.
Many employers use social media sites to ‘vet’ staff before interviewing or hiring them, but this can expose employers to potential problems and may be best avoided. ACAS have a social media guide in which they advise against using someone’s social media profile to decide whether to interview or hire someone (unless it is a business networking website like LinkedIn or a jobs website). Such a policy could lead to the exclusion of those who don’t have access to these facilities and also may bring allegations of discrimination – laws protecting people from discrimination on the grounds of age, sex, disability, race, marriage, religion and belief, and sexual orientation start at the recruitment stage.
Employers will also need to inform candidates of their intention to obtain data from online sources, to comply with the principles of fair and lawful processing and accuracy enshrined in the General Data Protection Regulations (2018) and the 2018 Data Protection Act.
Employers could face employment tribunal hearings if they refuse to interview someone as a result of a judgement they made based on a social networking profile. Similarly, if a job offer has been made and accepted which is then subsequently withdrawn after online vetting, there’s potential for a candidate to claim damages and compensation.
The Information Commissioner’s Office (ICO) has published an Employment Practices Code which looks at the impact of data protection laws on employment. The ICO recommends that employers confine the scope of their vetting/background checks to the candidate(s) selected for the job, and not to all short-listed candidates. Applicants should also be given the opportunity to comment and make representations on the accuracy of any data found.
When Employers make job/pay cuts and ‘tighten their belt’ in other ways, or a worker has another reason to be upset or unhappy at work, it might be tempting for disgruntled employees to complain about their employer online – but if an employee posts a derogatory comment or video clip about their employer or its products, the employer can take disciplinary action against the employee and ask the employee to remove the offending post.
A derogatory comment about the employer posted on a social media site will be defamatory if it contains an untruth about the employer that undermines the reputation of the Company. A comment will be libellous if it is permanent and clearly identifies the Company and the words are capable of damaging the company’s reputation.
If the post is not removed an employer can ask the site’s owner to remove the post and if this doesn’t happen then an injunction can be taken out against the employee. Libel proceedings may also be an option for the employer if the employee has posted defamatory comments. Defamatory comments made against an Employer can also be a breach of contract by the employee.
Even if an employee posts the comment in their own time they have an implied duty of fidelity to their employer (if there is nothing expressly written into their contract of employment) which means they cannot bring them into disrepute.
If an employee leaks confidential or sensitive information about their employer to a social media site – employees will usually have an implied duty not to release confidential information about their employer (and often have a written express term saying the same thing), unless there are properly whistle-blowing. This is likely to lead to disciplinary proceedings and could be gross misconduct that could result in dismissal.
A 2017 study by workplaceinsight.net discovered that the average employee spends three hours and five minutes of a working week on social media.
The most common concern for Employers are that employees:
In a case that reached the Employment Appeal Tribunal in December 2014 (Game Retail v Laws), the EAT considered whether a dismissal arising from an employee’s use of Twitter was unfair or not.
The employee was employed as a Risk and Loss Prevention Investigator and part of his role was to monitor inappropriate Twitter activity by employees. The employee set up his own personal Twitter account which didn’t identify him directly with his employer, but he ‘followed’ 100 of his employers other stores’ Twitter accounts and 65 of these stores followed the employee in return. One of the Employer’s Store Managers complained that the employee’s tweets were offensive and the Employer conducted an investigation, finding 28 tweets they considered offensive about various different groups of people. The employee was summarily dismissed for gross misconduct as the Employer felt that the stores (and employees and customers) for which his job made him responsible, could see his offensive tweets.
The original Employment Tribunal found he was unfairly dismissed because the summary dismissal was outside the ‘range of reasonable responses’ open to the employer, although they reduced the award given to the employee for his conduct. The Tribunal concluded that the Employer’s disciplinary policy did not expressly contain a clause that would have demonstrated to staff that offensive or inappropriate use of social media in private time would or could be treated as gross misconduct (and the tweets were sent during the employee’s private time). The EAT felt differently and said the employee’s tweets were available to be seen by colleagues and others and so could not properly be considered to be private, but could be considered as associated with the employer and potentially bring its reputation into disrepute. The EAT remitted the case to be heard again by a different Employment Tribunal.
The EAT acknowledged that employees have the right to express themselves but this must not infringe upon their employment and must be “balanced against the employer’s desire to remove or reduce operational risk from social media communications”.
In August 2013, the EAT in British Waterways Board v Smith held that the dismissal of an employee who made derogatory comments about his employer on Facebook was fair, even though the comments had been made 2 years prior to the dismissal. Mr Smith worked in a team responsible for the maintenance and upkeep of canals and reservoirs and was required to be on standby for one week in every five. During standby periods he was not permitted to drink alcohol.
During his employed Mr Smith had made a number of grievances and eventually a mediation meeting was arranged to deal with these. Before the meeting one of Mr Smith’s managers produced the comments made by Mr Smith on his Facebook page (the Manager had known about the comments at the time, and had discussed it with HR but it had not been investigated further), which included a reference to drinking while on standby. At the mediation meeting Mr Smith was suspended and later summarily dismissed for gross misconduct.
The original employment tribunal found the dismissal unfair but the EAT overturned this decision, even though the employer had deliberately searched for evidence against the employee to justify his dismissal.
In 2016 in Boyle v Portalon trading as Wagamama (Dublin), the Employment Appeal Tribunal rejected Boy’s unfair dismissal claim – he had sent a Snapchat video of himself taking drugs in his restaurant uniform to both friends and colleagues (that looked like it had been taken in the workplace bathroom). A disciplinary process wasn’t followed properly and he was advised to resign. The EAT weren’t happy with the choice given to the employee but decided the dismissal was not unfair as Boyle’s behaviour was so serious that the employment relationship could not continue.
In the January 2016 European Court of Human rights decision in Barbulescu v Romania, the Court found that Employers can legitimately monitor a worker’s private online messages where the system has been provided to the employee for business purposes.
Barbulescu was an Engineer, provided with a Yahoo Messenger chat account to talk to client contacts. He had been using it to chat with his family and asked the ECHR to rule that his company had breached his right to confidential correspondence by accessing his messages. He had been dismissed for breaching the company’s internal regulations which stated it was strictly forbidden to use “…(systems) for personal purposes”.
The Judge ruled that the Employer could monitor the messages because it believed it was accessing a work account and had the right to check the employee was doing the work he was there to do (and the Employer only relied on the Yahoo communications to find evidence and didn’t search for other data and documents stored on the employee’s computer; so the monitoring was limited and proportionate).
In Mr D Atherton v Bensons Vending Ltd, in 2019, an Employment Tribunal found that an employee dismissed for offensive Facebook posts about his Managing Director should not have been dismissed for gross misconduct (as he had been treated differently to another colleague and his good conduct record had not been taken into account).
Mr Atherton had been employed since April 2012. The MD (Ken Haseldon) usually gave his staff a Christmas bonus, either bottles of something alcoholic or gift vouchers, of around the £50 mark. In 2017 Haseldon decided to reduce the value of the gifts and Atherton and another colleague complained loudly to other colleagues and made several rude posts about the MD on Facebook. One of Atherton’s comments on FB was “well, he can stick his bottle where the sun doesn’t shine because I refuse to be insulted in this way!!!”.
The colleague was suspended for a few days and on his return to work he apologised and no further action was taken against him. Atherton attended a disciplinary meeting in January 2019 and apologised for his comments. The next day Haseldon wrote to Atherton to say he was dismissed without notice or pay in lieu of notice. The ET ruled that while Benson’s was within its rights to dismiss Atherton, his conduct was not gross misconduct.
If you use evidence from Social Media when disciplining or dismissing an employee, do so with care, as there are data protection and human rights laws to consider. If another employee provides evidence to the employer the employer must use it in the same way as it would any other tip-off’s – consider if the employee providing it has a grudge; has the information been taken out of context; are the dates accurate etc. In Gill v SAS Ground Services UK Ltd, Gill was signed off sick from her work at SAS but a colleague printed off information from Facebook showing she was actually attending London fashion week and working there for her own agency. The Tribunal felt this evidence from the colleague could be used and her dismissal was fair.
What employees essentially do in their own time is their own decision and own business, unless it somehow relates to their employment and the employers reputation. An Employee monitoring an employee’s use of social media in their own time would generally be unacceptable. Article 10 of the European Convention on Human Rights gives everyone “the right to freedom of expression”.
However, a distinction should be made between an employee expressing a personal opinion and an employee disrupting a workplace/atmosphere by making rude/offensive/racist/sexist/slanderous or damaging remarks and gestures, to colleagues, employers, clients, customers or members of the public. And employers can look to social media for evidence of an employee’s conduct outside work when they are supposed to be doing something else, e.g. talking about other business interests when their contract with their employer requires them to work exclusively for that employer; or out enjoying themselves whilst on sick leave (but Employers should not rely on these posts as sole evidence of a breach of contract; other investigations should be made).
Employers also need to consider how private the employee’s social media account is and who are their followers and connections. Generally, workers should consider that their ‘friend’ group may be quite wide and the likelihood of their interactions remaining private is hard to control as nobody in the ‘friend’ group is under any obligation to keep the post confidential.
In Mr A Patel v Department of Work & Pensions 2018, an Employment Tribunal found that a civil servant who was dismissed after he posted ‘racist and political’ messages from his personal Twitter account was unfairly dismissed. Mr Patel was employed between 1991 and 2017 and in his last job he was a Work Coach at a Job Centre.
The DWP’s ‘behavioural’ policy said that civil servants must not signal any political affiliation and avoid making offensive remarks to any individual or group – failure to comply could have serious consequences, including dismissal. In October 2017 the DWP investigated an anonymous complaint that Patel had breached this policy with personal tweets about a far-right extremist, Donald Trump and ‘white male Christian gun owners’. Patel attended an investigation meeting where he was shown nine “offensive, racist and political” tweets.
Patel accepted some of the comments were offensive, but said a security trainer had previously indicated to him that if his Twitter account could not be associated with the DWP then it did not matter what he tweeted. Subsequently, Patel attended a disciplinary hearing and was dismissed for gross misconduct. The Employment Tribunal found that the disciplining Manager had not investigated Patel’s case thoroughly enough and had not allowed him to comment on each of the tweets, and she could also not offer a clear reason why she considered the misconduct ‘gross’ as she had not established whether he had deliberately breached the ‘behavioural’ policy (he said he hadn’t).
With many employees managing their Employers online presences as part of their jobs (Twitter, Instagram, Pinterest feeds, LinkedIn groups, Facebook pages) the question often needs to be asked of who ‘owns’ these social media pages. There have been several employment law cases about this and generally, social media accounts created during employment for business purposes belong to the employer. But it can sometimes be difficult to prove that the accounts were set up solely for business purposes, especially if they’re used for both business and social purposes by the employee.
In deciding if the employer ‘owns’ for example, a LinkedIn group, the Employer needs to consider the following factors:
A Twitter account in the employee’s name, for example, will be difficult for an employer to claim ownership of. Especially if the account was created before the employee joined the employer and/or the employee tweets personal messages too.
To make things clearer Employers should:
Although some employers would like to ban the use of social networking sites by staff while at work completely, many believe this is not necessary – or even possible.
Instead, the best advice would be for employers to have a Social Media Policy (on its own or as part of an e-mail/internet policy). Such a policy should:
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.