The use of social media is now an established fact of life. Technological advances with easy-to-use apps on smartphones and tablets together with high speed internet links via home PCs and workplace computers, enables all of us instant access to online forums and facilities 24 hours per day (should we be so inclined).
In a working relationship context, it should not be overlooked that whatever one posts on social media, whether it be via Facebook, Twitter, Instagram or other discussion forums either in the form of words or pictures, could have serious repercussions for our working relationships.
There are numerous cases which have been reported from the Employment Tribunal establishing that it should not be overly difficult to fairly dismiss an employee who has made derogatory or negative comments about their employer or their work colleagues on social media. This principle applies irrespective of whether the individual intended to cause offence or not. It is the public nature of the media platform (global in most cases these days) that creates a significant risk that private comments made in a public forum could amount to gross misconduct. In some cases there may be examples of discriminatory conduct as well in the form of the expression of extreme political views.
A client of mine recently had cause to terminate the employment of an individual as a result of comments made on social media which resulted in the client’s customer refusing to allow that particular individual on-site. They removed their security pass and our client did not have any alternative work available for the individual to carry out at any other site with the result that there was no realistic option other than to terminate that individual’s employment.
The expectation that an individual will not engage in offensive and discriminatory conduct outside of the workplace is not an unreasonable standard of behaviour for an employer to expect these days.Paul Johntone, Collingwood Legal
The lesson to be learned here is that comments made via social media can be seen by your customers as well as by your work colleagues.
In order to ensure that you have the best possible chance of successfully defending any claims for unfair dismissal from a disgruntled employee who has been sacked for making inappropriate or potentially offensive comments on social media, you should implement a clear and unambiguous social media policy which should apply not only to the use of company IT systems but also to comments made by an individual when they are not at work. Some may say that such an approach is Orwellian and smacks of Big Brother but in the modern world, there is no such thing as strictly private comments should those comments be made on a public social media forum. The expectation that an individual will not engage in offensive and discriminatory conduct outside of the workplace is not an unreasonable standard of behaviour for an employer to expect these days.
Some claimants in Tribunal cases have sought to rely on the principles set out in the Human Rights Act 1998, particularly Article 8 which gives a right to respect for private and family life, home and correspondence as well as referring to the principles of Data Protection Act and the Regulation of Investigatory Powers Act 2000 to argue that their communications via e-mail or social media should be treated as being sacrosanct on the grounds of privacy. It has to be said that in most cases where there is a clear breach of the standards of civil behaviour and where there are expressions of offensive content it will normally be the case that an employer will be able to dismiss an employee and will be able to successfully defend that action at an Employment Tribunal. Essentially, the right to privacy and the rules regarding use of IT systems does not provide a shield or a hiding place for those who choose to express themselves in offensive and discriminatory ways.