Whilst employers can and should set a clear robust policy for employee use of social media, they must also strike a balance between the employees’ right to freedom of expression and the employer’s need to reduce the risks involved with social media postings.
Striking a balance with your employees
Internet trolls are just one example of when people may post something on social media which they would not necessarily say to someone’s face. There is always the risk that employees may post content which they would never otherwise share in the workplace, potentially leading to the risk of causing offence to others in the office and the potential for reputational damage to the employer.
So what powers do employers have to control what their employees post on social media?
Recent social media cases
Certainly employers are able to implement a social media policy which sets out what employees may and may not do or say when using social media both at work and at home.
In Crisp v Apple Retail (UK) Ltd an Apple employee posted on Facebook complaining about his iPhone and used the “f” word in connection with his work. Apple dismissed him for gross misconduct. His claim for unfair dismissal failed. The Employment Tribunal felt that Facebook postings were not truly private as there was nothing to stop his Facebook “friends” from sharing the postings with others. Importantly, Apple had a clear social media policy which specified, amongst other things, that Apple employees must not post about Apple products on social media.
However, employers cannot necessarily prevent employees from expressing their personal opinions on controversial subjects on social media, especially when they are doing so in a personal capacity and outside of work. In Smith v Trafford Housing Trust, Mr Smith posted his negative views on gay marriage on Facebook. An employee of the Trust saw these and complained to the Trust. Mr Smith was disciplined and demoted. The court found Mr Smith’s comments were his private opinion and that no reasonable person would have concluded his comments were made on behalf of the Trust. In this case freedom of expression took precedence.
However, employers are likely to be able to state that tweets which are clearly offensive and where the employee’s employer is identifiable are not acceptable. In Game Retail Ltd v Laws an employee posted many offensive tweets from his personal Twitter account. His account did not specifically associate him with Game Retail but 65 of Game Retail’s stores followed him and his tweets were publicly visible. He was dismissed for gross misconduct for posting offensive tweets and claimed unfair dismissal.
The Employment Tribunal held the dismissal was unfair and took the view that the tweets were posted for private use. It highlighted that Game Retail's disciplinary policy did not state that inappropriate use of social media in private time could amount to gross misconduct.
Game Retail appealed. The Employment Appeal Tribunal (EAT) held that Mr Laws’ tweets could not properly be considered private. The EAT found that a balance had to be struck between an employer's desire to remove or reduce reputational risk from social media communications by its employees, and an employee's right of freedom of expression. On the facts of this case, and given the public nature of Twitter, Mr Laws' tweets could not be considered to be private despite the fact that they were posted from his personal Twitter account and in his own time.
What is the way forward?
As can be seen from the Apple case, it is vital that all employers have a clear social media policy. This should make it clear that social media is not private and that disciplinary action may be taken if the employee breaches the policy eg if a person posts derogatory or offensive comments. It should be made clear this applies even if the postings are made outside of work, using personal devices.
A good social media policy should cross refer to the equal opportunities and anti-harassment policies and explain that offensive postings on social media may breach these policies. For example, in Teggart v TeleTech UK Limited an employee posted vulgar comments amount a female colleague on Facebook. This contravened the employer’s anti-harassment and bullying procedures and constituted gross misconduct.
The policy should also set out guidelines for responsible business use of social media and the employer’s practices in relation to the monitoring of social media. Employers should make sure employees are fully aware of the policy and training is recommended.
It is by no means easy for employers to navigate the world of social media. However, guidance on acceptable use through a comprehensive policy that is consistently enforced goes a long way towards managing risk.
By Kerry Garcia, partner and Kate Fellows-Tully, paralegal at Stevens & Bolton LLP