Social security Â– the legal implications of the Facebook generation
The almost overwhelming rising tide of social networking sites has been described as 'an HR accident waiting to happen'... By Gavin Matthews, head of retail at Bond Pearce.
We can now see many employers, especially those in the world of retail, grappling with how to deal with employees who post malicious comments about an employer, colleague or customer for the world to see.
First it was the telephone, then the computer – now we are each tethered to a mobile device of some sort; the pace of communication evolution is relentless. Barely a month goes by without a new social media platform being launched and Facebook now has almost a billion users worldwide.
Yet this has proved to be one of the more challenging changes for employers to get their heads around. Opinion is divided as to whether social media are a threat or an opportunity: on the plus side, they provide an interactive platform for marketing the business and getting up-to-the-minute information to a wide audience quickly and cost-effectively. On the downside, they pose a potential security and intellectual property risk and the benefit described above can just as easily lead to negative publicity quickly leaking into the public domain.
Where push comes to shove is in the disciplinary arena, particularly whether dismissing an employee for posting derogatory comments about an employer, colleague or customer can actually be a fair dismissal. Cases are cropping up more and more regularly and, by looking at these, it is possible to at least identify some ways to nip these issues in the bud.
Video didn't kill the You Tube star
One of the earlier cases was that of Taylor v Somerfield Stores Ltd (2007). Mr Taylor posted a video on YouTube showing two colleagues hitting each other with Somerfield plastic bags. He was dismissed for bringing Somerfield into disrepute. The tribunal held that there were insufficient grounds to dismiss: the video had only eight hits (six of which were the managers investigating) and no reputational damage was caused to the employer. It was held that the dismissing manager had failed to consider alternatives to dismissal and had not taken mitigation into account, such as the employee's admission of guilt, his apology and his unblemished record.
In Walters v Asda Stores Ltd (2008), a manager's comments on her Facebook site (that it would make her happy to hit customers on the back of the head with a pickaxe) were deemed to be misconduct not gross misconduct meaning her dismissal was unfair. Her behaviour fell into the misconduct category within examples given in Asda's internet policy.
A slap in the Facebook
By contrast, in a case in 2010 the tribunal found the dismissal of a pub manager after posting comments on Facebook to be fair. The pub manager had been verbally abused and threatened by two customers. She asked them to leave. Later, their daughter called her and was abusive. She made comments about the incidents on Facebook while she was at work. She thought her privacy settings meant only her friends could see the comments but the customers’ daughter saw them and complained. She was dismissed for gross misconduct for her breach of the email and internet policy, which specifically referred to use of media such as Facebook while at work. The Tribunal found the dismissal to have been fair; it commented that a final warning may have been more appropriate but did not substitute its own view.
More recently, in Crisp v Apple Retail (UK) Ltd (2011) it was also held that the dismissal of an employee for posting comments on Facebook was fair. Apple had made it clear in its policies and training that protecting its image was a core value and had stated that making derogatory comments in social media was likely to constitute gross misconduct. Mr Crisp did not have a reasonable expectation of privacy in respect of his Facebook page (as he had no control over how his comments might be copied and passed on) so his right to privacy had not been infringed.
Policies provide protection
The key lesson for employers that emerges from these cases is the importance of policy. A specific and clear social media policy is the most helpful way to communicate with staff about what is and isn't deemed acceptable. A policy will also help justify dismissals if it should come to that. However employers will need to show that their policy has been properly communicated to staff and backed up with training, at least for managers.
Social media will no doubt continue to evolve at a terrifying rate but as it becomes more and more entrenched in our day to day lives we cannot ignore it and employers must accept and deal with it as best they can.
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