The proliferation of social media has blurred the lines between public and private life and as such, in the last few years, there has been a rise in the number of cases involving an employee’s use of social media sites such as Facebook and twitter. This has also been made all the more worse by Facebook’s continuously changing privacy policy, meaning users are unable to manage their online profiles effectively.
Many employees do not fully appreciate the very public nature of the comments, tweets, pictures or status updates they post and how this impacts their employer’s reputation in the market place. As such, for employers it is important to establish how they can protect themselves from any negative publicity generated through these sites.
Earlier this year one case provided employers with some clarification on the matter. In Preece v JD Wetherspoons PLC, the Employment Tribunal ruled in favour of JD Wetherspoons when they dismissed a pub manager for gross misconduct after she made inappropriate comments on Facebook about two customers who had verbally abused and threatened her.
All employees have the right to be fairly dismissed and it is for the employer to prove that the reason for a dismissal is a potentially fair reason. As such, employers should implement fair procedures throughout the dismissal process.
It is then for the tribunals to decide if the reason to dismiss falls within “the range of reasonable responses” of a reasonable employer in those circumstances and in that business might adopt. However it is important to note that they do not substitute their views for that of the employer.
In relation to conduct dismissals it must be established that:
• At the time of dismissal, the employer believed the employee to be guilty of misconduct
• At the time of dismissal, the employer had reasonable grounds for believing that the employee was guilty of that misconduct
• At the time that the employer formed that belief on those grounds, it had carried out as much investigation as was reasonable in the circumstances
Here lies the importance of having a robust Social Media Policy that can be incorporated into an employee’s contract of employment. In this recent case, Miss Preece, the pub manager had a contract that incorporated the Wetherspoons employee handbook. The handbook contained an e-mail, internet and intranet policy, disciplinary and dismissal procedures and stated that failure to comply with the policy would amount to gross misconduct.
When drafting such policies it is important to be alive to the objectives the employer is trying to achieve, in most cases to protect the reputation of the company, but also to ensure confidential information is not disclosed to the general public or that the social media tools are not used for improper purposes, such as bullying or harassment. It is also necessary to establish and outline what type of conduct is prohibited by the company.
Providing employees with clear guidelines about what they can and cannot do does not only enable them to follow the rules but it also helps the employer to identify when rules are broken and in turn enforce them. However, where a list of acts is detailed in a policy, it should be qualified by making it clear that the examples are not exhaustive. This allows employers to discipline or dismiss employees for conduct they did not foresee when drafting the policy.
