The proliferation of social media has blurred the lines between workers’ public and private lives.
As a result, over the last few years, there has been a rise in the number of cases involving employees’ use of social media sites such as Facebook and Twitter. The situation has also been made all the more difficult by Facebook’s continually changing privacy policies, which means that many users simply do not know how to manage their online profiles effectively.
Many employees likewise do not fully appreciate the very public nature of the comments, tweets, pictures or status updates that they post and how they could affect their employer’s reputation.
As a result, it is important for employers to understand how they can go about protecting themselves from any negative publicity generated through these sites.
Earlier this year, one legal case provided some clarification over the matter, however. In Preece vs JD Wetherspoons Plc, the employment tribunal ruled in favour of JD Wetherspoons for dismissing a pub manager for gross misconduct after she made inappropriate comments on Facebook about two customers that had verbally abused and threatened her.
Fair dismissal
The point here is that all employees have the right to be dismissed in a fair manner and the onus is on the employer to prove that the reason for their dismissal is fair. As such, employers need to be careful in ensuring that the procedures that they use during the dismissal process are fair.
It is then up to a tribunal to decide if the reason for the dismissal falls within “the range of reasonable responses” that an employer in those set of circumstances and operating in that field might adopt. It is important to note that tribunals do not substitute their views for those of the employer, however.
Rather in relation to conduct dismissals, it must be established that:
- At the time of dismissal, the employer believed that the employee was guilty of misconduct
- At the time of dismissal, the employer had reasonable grounds for believing that the employee was guilty of that misconduct
- At the time that the employer formed their belief on those grounds, it had carried out as much investigation into the issue as was reasonable in the circumstances
It is in this context that the importance of having a robust social media policy that can be incorporated into workers’ employment contracts becomes clear. In the recent Wetherspoons’ case, Miss Preece, the pub manager, was subject to a contract that included the pub company’s employee handbook.
Suitable policies
The handbook contained email, internet and intranet policies as well as disciplinary and dismissal procedures. It also stated that failure to comply with these policies would amount to gross misconduct.
But when drafting such documents, it is important to understand your employers’ objectives. In most cases, these aims will be to protect the reputation of the company, ensure that confidential information is not disclosed to the general public and/or that social media tools are not used for improper purposes such as bullying or harassment.
Other considerations, however, include establishing and outlining what type of conduct is prohibited by the company. Providing staff with clear guidelines about what they can and cannot do not only enables them to follow clearly established rules, but also helps employers to identify when rules are broken and, therefore, to enforce them.
Where a policy lists a series of prohibited acts, they should also be qualified by making it clear that such examples are not exhaustive. This enables employers to discipline or dismiss employees for conduct they did not foresee when drafting it.
As the use of sites such as Facebook and Twitter become increasingly engrained in how we operate in both our personal and professional life, it will, in turn, become ever more important for employers to establish rules and policies simply to protect themselves from uninformed, and sometimes careless, personnel more effectively.
Preema Patel is a solicitor at Bevans Solicitors.
