Social media and its alleged ills have again been in the news. Whether it is offensive comments relating to tragedies, critically ill health workers or hitting a cyclist, the damage 140 characters can do continues to be highlighted.
In the most recent case, when a young stockbroker tweeted his "joke" about needing to race off to work despite colliding with a cyclist he probably thought nothing more about it.... until he checked his feed to find multiple retweets, many adverse comments and a tweet from the local police force seeking more details. Could it get worse?
Yes. He then found himself dismissed by his employer who stated "One of our employees has failed to conduct themselves to the standards we expect of our staff... We find these online comments totally unacceptable. Upon becoming aware of this issue we have terminated this person's employment with immediate effect"
Social media and its unparalleled reach to the public remains a scary prospect for some employers but the key advice here is to take a moment and react calmly and reasonably if an issue arises.
We have seen a number of cases involving social media mishaps over the last few years and here are a few things to keep in mind:-
- Remember, if the employee has been employed with you for more than 2 years, they have the right to claim unfair dismissal if their dismissal is not for a fair reason and/ or has occurred without a proper process being followed. So follow a proper disciplinary process!
- Just because they don't have 2 years' service, they could still claim their dismissal was unfair in some circumstances, such as discrimination. So it is best to follow a proper process and be clear about the reason for the dismissal.
- Be careful if the tweet/ posting expresses a personal view, even if you may disagree with its terms. Is it objectively offensive? If could amount to an expression of a "religious or philosophical belief", great care must be taken.
- It is sensible to always give the employee the opportunity to explain themselves.
- Employees cannot automatically expect their posts / tweets to be "private". Provided an employer has not gone on a deliberate unjustified trawl to look for issues to try to justify an action (e.g. a tweet has come to their attention possibly by being forwarded to them by other employees) it is reasonable to consider the terms of the post / tweet to see if further action is needed.
- What does the twee/post actually say / show? How serious is it? How many people have seen / had access to it? Overall, could you persuade a Tribunal that a disciplinary penalty / dismissal was a fair and reasonable sanction in the circumstances?
- If the post / tweet was from a personal account, can you establish a link between what the employee has said and their employment? If not, how would you justify the dismissal? Employers, who react to personal postings, especially if the employer is not identified or identifiable, could face an uphill battle to show any disciplinary action was fair.
- If the employer is identified, then the employer's remit to act may be more apparent but whether the employee's actions amount to misconduct must still be considered.
- Employees may criticise colleagues (whether in apparent "banter" or otherwise) on social media but do not identify the employer. In some circumstances, action is still valid especially if the tweets / posts amounts to bullying or harassment.
- Do you have a robust social media policy which you can point to when justifying your decision to take disciplinary action / dismiss? Employers with such policies are likely to have an easier time explaining their decision and showing it was fair.
And most importantly...
Don't over-react: Employees do daft things occasionally but that does not mean an employer should act too harshly.
Amy Jones is a Partner in Thorntons Employment Law team. If you need any advice on dealing with Social Media issues please contact Amy on 01382 229111 or email ajones@thorntons-law.co.uk
