Employers need to take care before they are outraged about comments that their employees make on social media

Employers undoubtedly feel that they have a legitimate expectation that their employees will not go around making damaging comments about them or their colleagues, or perhaps their products and services, during the course of their employment.  Sadly, employers may even have put in place a Social Media Policy guiding employees as to what they regard as misconduct when it comes to social media activity, spelling out that it is likely to lead to disciplinary action. Such conduct may range from making disparaging comments on public websites to expressing views which are unrelated to the employer’s business but which could reflect negatively on them.

The case law is fairly clear in that an Employment Tribunal would have to be satisfied that the comments that are at the heart of any misconduct case were likely to actually damage the employer’s reputation.  It is not enough for an employer to merely assert that they felt damage was going to occur.  The most recent case involves the Food Standards Agency where a food inspector called Alan Blue was sacked after he ‘liked’ a Facebook comment about his boss being attacked with a chair.  The Facebook thread had been commenced by an employee of one of the abattoirs that the food inspector went into when carrying out his inpection duites.  The Food Standards Agency felt that the employee had acted in an unprofessional manner and breached their trust.

Up until this point, the employee had had a clear disciplinary record.  The Food Standards Agency had a Social Media Policy in place but it was mainly covering issues arising in the workplace – it didn’t include any guidance in relation to cases outside of work or where the threads of comment had been created by a third party.  The Employment Tribunal found that Alan Blue had been unfairly dismissed and awarded him over £32,000 compensation.

This case is the latest reminder that the Tribunals will expect some evidence that the comment resulted in a damage to the employer’s reputation. By way of example:

• Has a customer, supplier or other third party complained?
• Has that complaint led to the organisation’s services no longer being used by that third party?
• How senior was the employee?  It may well be that the more junior the employee is, the less likely their comments will be found to influence key business relationships as opposed to senior staff.
• Was the Facebook or other social media comment widely seen or did only a relatively small group of people see the comment?  For example, did a ‘tweet’ go viral or actually was it only seen by a handful of somebody’s followers, if at all?
• What were the comments and what was the severity of them?  A good test would be to ask somebody from outside of the organisation what their view would be i.e. an objective bystander.  If they feel the remark is damaging, then it’s much more likely that a Tribunal will agree than where you rely on the perhaps emotional response from those internally who may not be looking objectively.
• Has there been any breach of confidentiality?
• Were the comments made by the employee during their working time and using the employer’s equipment?

It is clear that if the Tribunal feel that the comments are likely to damage the company’s reputation, it will protect the employer.  An example of this is the case of Crisp v Apple Retail where the employee had made disparaging comments online about Apple products.  In that case the employer had given the employee specific training on how to use social media in the context of his employment.  That probably turned the dismissal into a fair one.

Another factor that the employer will have to take into account in any case is whether actually the employee’s views are protected as part of the employee’s right to express their opinions and, for example, their religious views.  This was the case in Adrian Smith v Trafford Housing Trust where the employee had commented about his views on gay marriage.  In that case, whilst the employer felt the views were harmful and were a breach of Equal Opportunities Policies, the employer was encouraged to respect the employee’s religious views which informed his opinion.  The employee was found to have been wrongfully dismissed.

It is clear that, for employers who want to cover off activities of the employee that might take place outside of work, the Social Media Policy needs to expressly cover this as well as inside of work behaviours. In particular we find, when drafting Social Media Policies, that it is examples that really bring the policy to life.  Whilst it is very easy to say in a policy that you don’t want somebody to bring an organisation’s reputation into disrepute, it is often only through examples that employees will understand what that really means.  The more you can bring your policy to life in this regard, the better.

If you need any help drafting a Social Media Policy, please don’t hesitate to contact us.  You can email Anna.