Employment Law Brief with Darren Newman
Employment Law Brief with Darren Newman
In the first of many guest blogs by our colleagues and associates – Darren Newman provides an insightful and extremely relevant employment law update looking at the potential impact of social media in the workplace.
Social media has revolutionised the way in which we interact and communicate with each other. This poses a challenge for employers. To what extent can the online activities of an employee be something that an employer can impose limits on? When can online comments made be the subject of disciplinary action?
As with any other area of off-duty conduct, the answer depends on the extent to which the employee’s activities impact on the legitimate business interests of the employer. Employees have a duty to render faithful service to the employer and publishing derogatory comments can be a breach of that duty. What an employee says online may also provide evidence that they are not a suitable person to be employed in a particular role.
Take the recent case of The British Waterways Board v Smith. Mr Smith was a manual worker who was required to be on 24-hour standby one week in every five to deal with any emergencies that might occur. The team in which he worked was not a happy one and a number of grievances were raised about alleged bullying.
Just before Mr Smith’s complaint was due to be heard, however, he was accused of gross misconduct based on comments he had made on Facebook. The comments had been taken directly from his Facebook page and some of them dated back up to two years.
Most of them simply stated that he hated his work and described his supervisors in (very) unflattering terms. More seriously, some of his comments referred to drinking while on standby – something strictly prohibited and regarded by the employer as gross misconduct.
Mr Smith argued that all of his comments – including those about drinking while on standby – were ‘banter’. He hadn’t intended them for public consumption, but his Facebook account had been hacked and the privacy settings changed so that anyone could read them.
The employer didn’t believe him and decided that he must have been drinking while on stand-by, so he was sacked for gross misconduct. The Tribunal found that the dismissal was unfair. Mr Smith had 8 years of unblemished service and consistently good performance reviews. The employer had actually known about the comments for some period of time before deciding to act and the Tribunal took this to show that the matter was less serious than the employer subsequently claimed.
The Tribunal also noted that the comments were made on a social media site used for ‘chat’ and which ‘frequently involves people making claims which are either exaggerated or simply not in fact true’. Given that a fair procedure had been followed and the employer honestly believed that Mr Smith had been drinking while on standby the only option open to the Tribunal was to find that the dismissal was fair. Frankly I think the employer had a lucky escape here. It does seem quite harsh to take everything someone says on their Facebook page – aimed solely at their own circle of friends – as the literal truth.
I can certainly imagine that someone would boast about drinking while on standby in order to seem cool and rebellious while staying scrupulously sober – and the employer had no other evidence that the employee had been drinking when he shouldn’t. But even if we take this case as being a close-run thing, there are still lessons that we can learn from it.
If the employer actually hacks into an employee’s account and obtains information illegally, then that is a different matter. But, in general, any evidence that an employer can lawfully access online is fair game.
I also think it was significant that some of the comments could be used as evidence of specific misconduct – drinking while on standby – as opposed to the employer’s concern that Mr Smith’s other comments had risked bringing the employer into disrepute. We all moan about our work – don’t we? Requiring employees to be positive and engaged while writing about their day on Facebook or Twitter is surely taking things too far. Employers may worry that when negative comments are published online they can be seen by the whole world.
However the reality is that most comments on social media are seen by almost no-one. It is important to keep a sense of perspective and think carefully about how much harm has actually been done. Where there is a more specific concern, however, then the employer is justified in taking a much harder line. In the Smith case the issue was drinking on stand-by.
In a lot of local authority work the concern will be over information regarding children or vulnerable people. Making an online comment even in jest that could lead to a vulnerable person being identified, or which might give the impression that appropriate care was not being given, is the sort of thing that an employer will be entitled to have no sense of humour about.
One of the key questions in an unfair dismissal case is often whether the employee should have understood that the conduct in question could lead to dismissal. Where employees work with vulnerable groups or where the employer has some other specific reason to be concerned about what might be said on social media – then it is worth making this clear, either in a general code of conduct or a specific social media policy.
It is best not to get carried away. A policy that is too restrictive will be widely ignored and will do more harm than good. Employers should appreciate that employees will say things online that they wouldn’t say in the workplace.
However, where an employee’s role causes a particular risk of harm if comments are misjudged or taken out of context then a strict policy is justified – and also helps protect the employee. One misplaced comment about a care home or school could erupt into a Twitter storm that can be a nightmare for the individual concerned as well as causing damage to the employer. If employees are given clear boundaries about referring to work on social media then most will be grateful to be given good practical advice.