The case of Teggart v Teletech UK Limited (ET, 2012) is but the latest of many cases we have now seen of an employee dismissed for misuse of social media in their own time. Although we have yet to see an EAT decision we now have a body of Employment Tribunal decisions, which all provide helpful guidance to employers looking to tackle these issues.

Actions of the Employee
In the Teletech case, a male employee was dismissed after posting a comment on his Facebook page questioning the promiscuity of a female work colleague. He refused to delete this post when challenged by her friends and instead posted a further offensive message. When reported to his employer, he was dismissed for harassment and bringing the company into disrepute. Although the Employment Tribunal found there was "little or no evidence" of the company being brought into disrepute, they held that he had been fairly dismissed by the employer on account of the harassment.

The Tribunal rejected his arguments that the dismissal involved a breach of his human rights, including the rights to respect for private life and in relation to freedom of expression. Having posted comments publicly, he could not then argue they were "private" in nature. Similarly, while he did have a right to free expression, this was qualified in this case by his work colleague's right not to suffer harassment.

The case provides welcome confirmation to employers that they are able to take action on social media misconduct by employees, which takes place in their own time but has a damaging impact in the workplace.

Impact on the Employer
It is also a helpful reminder that evidence will be required of damage to reputation or disrepute before that ground might safely be relied upon. This point has been made before in other social media cases. For example, in Taylor v Somerfield (ET, 2007) an employee was unfairly dismissed for uploading a "funny" video taken at work onto YouTube. In rejecting a claim of damage to reputation, the Tribunal took into account that Somerfield could not be identified from the video, nor had they received any customer complaints. Similarly in Whitham v Club 24 Limited (ET, 2011) an employee was dismissed for posting on Facebook "I think I work in a nursery and I do not mean working with plants".   The Tribunal found her dismissal for placing a relationship with a major client at risk to be unfair as there was no evidence that the client had been approached for their opinion. In the Tribunal's view it very much doubted the client would terminate an important commercial relationship due to "mild comments" by a junior employee.

The cases all illustrate that knee-jerk reactions are to be avoided in favour of assessing what impact, if any, there has been on the employer's business and how this can be evidenced.

Mitigating Circumstances
The case of Stephens v Halfords (ET, 2010) also highlights that mitigating factors may render a dismissal unfair. In that case the Tribunal took into account that the employee had been off sick with stress at the time of setting up a Facebook page about proposed changes at Halfords. There was evidence to suggest this may have been capable of affecting his judgment. The employee had also taken steps voluntarily to delete the page when he realised it was in breach of company policy. He had apologised for his action and promised there would be no recurrence. Finally, reinforcing the point made above, no evidence had been led by the employer of any damage caused to their company

Building a Successful Defence
Another important consideration in many of the cases is whether the employer has in place an appropriate social media policy which warns employees of potential dismissal for misuse.

For example, in Preece v JD Wetherspoons (ET, 2010) a shift manager was dismissed for posting comments on Facebook about customers who had verbally abused her in the course of a shift. Finding the dismissal to be fair the Tribunal noted that the manager was fully aware of the company's policy on social media which specifically provided that the employee must not post content online which lowered the reputation of the company or its customers. A complaint received following the employee's conduct was used as evidence of damage to their business.

Similarly, in Crisp v Apple Retail (UK) Limited (ET, 2011) the employee was found to have been fairly dismissed having posted messages on Facebook criticising Apple products. The Tribunal pointed to clear policies and training which had been provided to employees as to the need to be mindful as to how they presented themselves online, including in relation to Apple products. He should have been aware from the policies and training that his comments could damage his employer's reputation and bring them into disrepute.

Addressing the risks
An obvious message from the cases to date is that every employer who does not have a social media policy should take steps to implement one. This should be communicated clearly to employees preferably in a manner which requires sign-off, so there is no dispute over awareness. Those who already have policies should ensure they are thorough and up to date.

Employers should consider the following issues when developing and revising social media policies:

• Be clear that the policy applies to social media use which impacts the employer regardless of where this takes place
• Provide guidance as to when business systems might be used (if at all) for social media purposes (for example, during a designated lunch hour or break time)
• Be clear if reasonable personal use is permitted that such use will be subject to normal rules as to monitoring of business systems (in compliance with data protection rules and the Employment Practices Code) and cannot be considered "private"
• Ensure there is a clear message about acting responsibly and in such a way that does not have a negative impact on the business including your products or services, work colleagues, clients or customers or your confidential information
• Advise employees that the consequences of misuse may lead to disciplinary action being taken up to and including dismissal
• If you encourage or allow employees to make use of LinkedIn to connect with your clients or customers, provide clear guidance (whether in your policy or in contracts of employment) as to your expectations as to what will happen to these connections made in the course of employment, when an employee leaves employment (this point in particular will require explicit agreement by the employee
• Consider whether there is a need to also amend other relevant policies - for example, your disciplinary and non-harassment policies to refer to social media use
  
  

When an issue arises
If a situation of social media misuse does arise, employers should consider the following points:

• Is there clear evidence of "impact" on the business? If so, what impact has the misconduct had?
• In particular, have there been any complaints from colleagues, clients or customers?
• Can the situation be resolved informally with the employee, for example, by asking them to take down inappropriate comments? Would this be a suitable step having regard to the content?
• Is there a clear policy in place which provides employees clear guidance and warns of disciplinary action? Has there been training to reinforce this policy and raise awareness?
• Are there mitigating factors that need to be taken into account? Is there ill-health that may have impacted conduct? To what extent has the employee shown contrition and remorse?
• Are other employees involved and should action be taken against them? Very often in the above cases (including Teletech, Preece and Apple) arguments were presented as to the action taken against colleagues who also posted comments on the original posts. Will you be able to show a consistent approach has been taken?
• Consider how you would have dealt with comparable conduct not involving social media?
• If you are considering dismissal, has this been set out as a potential consequence of such misconduct?
• Are there possible PR implications: very often such cases attract media attention. What will external perception be if the subject starts "trending" on Twitter?
  
  

MMS can help

We have considerable experience helping clients develop and implement social media policies. It is vital to get such policies right as it is very likely that you may have to rely upon the policy at some point and perhaps put it before an Employment Tribunal.

We can also provide training in relation to social media issues, both stand alone and as part of discrimination and harassment training.

When issues do arise, we can provide pragmatic commercial advice in relation to the challenges that can emerge, so that your business is best placed to navigate this tricky area.

Contact us

For advice in relation to any of these issues or simply to discuss your needs further, please contact:

Jane Green
Partner
0131 228 7130
jane.green@mms.co.uk

Alan Delaney
Associate
0131 228 1728
alan.delaney@mms.co.uk

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