With the ever-growing use of social media, employees’ behaviour on social media is increasingly causing employers problems. In this post, we look at how employers can tackle such behaviour.
To understand how to tackle behaviour like this, we first need to know what rights an employee has. Here are the fundamental ones that are relevant here:
1. Employees’ contractual rights. If you are contemplating dismissal for misuse of social media, you will have to meet the employees’ notice period unless they have committed an act of gross misconduct.
2. Unfair dismissal. Save in limited cases, employees must have 2 years’ service (less one week) to have unfair dismissal rights. Once the employee has unfair dismissal rights, the employer cannot fairly dismiss unless they have a fair reason and follow a fair process. Misuse of social media can be a fair reason (conduct) and that is what we will look at here.
3. Discrimination rights. It is against the law to discriminate against anyone because of age, gender reassignment, being married or in a civil partnership, being pregnant or on maternity leave, disability, race (including colour, nationality, ethnic or national origin), religion or belief, sex or sexual orientation (these are called the protected characteristics).
Inappropriate comments – what can you do?
What happens where an employee expresses inappropriate personal views on social media? Whether the employer can take action or not, depends on the connection with work.
If the employee is posting inappropriate content on a work account or for a specific work-related purpose, there is a clear connection with work. If the content brings the employer into disrepute, the employer can take disciplinary action. If the employee misuses the employer’s work equipment, that will also be a relevant factor.
With postings on private accounts, you have to asses whether there is a sufficient connection with work. Examples where it has been found fair to dismiss include where an employee described colleagues on Facebook as “nasty horrible human beings” and the workplace as “Dante’s inferno”. In another case, an employee made comments about drinking whilst on standby. If the postings are outside work, with no connection to the employer, it will be harder to justify serious disciplinary action. An example would be if an employee posts racist comments on Facebook and a colleague sees it. The employer should look to see if there is damage to reputation and whether the behaviour falls within behaviour not allowed in the social media policy.
Bullying and harassment on social media
If there is bullying and harassment on social media, this will likely constitute disciplinary action in the same way if a colleague had bullied another colleague in a more conventional way. The key will be whether a fair process has been carried out including a thorough investigation.
So, what tips do we have for employers? The Courts have not set guidelines for employers in dealing with social media cases. What they have done is set out certain factors that will be relevant in most cases. They are:
1. Whether the employer has an IT or Social Media Policy.
2. The nature and seriousness of the alleged misuses of social media.
3. Any previous warnings for similar misconduct in the past.
4. Any actual or previous damage done to customer relationships.
In most cases, where dismissal is considered, whether the employee has unfair dismissal rights will be the key question. If they do not, and there are no discrimination characteristics, it will be safe to dismiss. If they do have unfair dismissal rights, the key issue will be whether the decision to dismiss is within the range of reasonable responses open to a reasonable employer. In other words, is dismissal a reasonable response to what the employee has done.
The Courts have made it clear that each case will be specific to its facts. A key failing we see with employers is not having a social media policy. Without that, it leaves it open to an employee to say they didn’t understand the rules. If you don’t have a social media policy, get one in place. If you haven’t reviewed your social media policy for some time, conduct a review.
If you have any questions on this post or any other area of Employment Law or HR, please contact Rob Tice on 01332 866610 or email email@example.com. If you would like a free social media policy, please e-mail firstname.lastname@example.org.