The number of problems that arise from the use of social media has, in recent years, increased dramatically.
Facebook now has over 1 billion users, more than 500 million people are said to be tweeting and over 100 million professionals are connecting with each other on LinkedIn.
Every day more and more users of all ages and walks of life arrive, vying for attention in the social media sandstorm. All this means that employers are in uncharted territory and have to handle new challenges arising from new technology as best they can. It’s not always easy to get it right.
You might have seen the case of Adrian Smith in the media recently, who was demoted for posting his opposition to gay marriage on Facebook in February last year. After seeing an article entitled “Gay marriages get go ahead” on the BBC News website, the Christian linked this to his Facebook page and added the comment, “an equality too far”.
Although the post was made outside of working hours and could not have been seen by anybody other than his Facebook friends, Mr Smith was told by his employer, Trafford Housing Trust, that his comments could upset other co-workers. Indeed, two colleagues read his remark and commented asking him to explain what he meant.
The next evening he posted: “I don’t understand why people who have no faith and don’t believe in Christ would want to get hitched in Church. The Bible is quite specific that marriage is for men and women. If the state wants to offer civil marriage to the same sex then that is up to the state; but the state shouldn’t impose its rules on places of faith and conscience.”
Freedom of speech
As a result of his status update and the subsequent comments, he lost his managerial position, had his salary cut by 40% and received a final written warning. Mr Smith brought breach of contract proceedings, saying that the trust acted unlawfully in demoting him.
Last week, the high court ruled in his favour, finding that his postings did not amount to misconduct, and the demotion imposed by way of a disciplinary sanction was a breach of contract. Despite these findings, Mr Smith was awarded just £100 in compensation for technical reasons.
Mr Smith commented on this, stating that the money didn’t matter; it was the principle that was more important. He went on to say that “Britain is a free country where people have freedom of speech, and I am pleased that the judge’s ruling underlines that important principle”.
Despite the title and Mr Smith’s comments however, freedom of speech is in no way entirely free.
There are a number of cases this year in fact, where tweet-ers have been arrested and fined for their comments about athletes (Tom Daley and Fabrice Muamba) and celebrities (Gary Barlow, Katherine Jenkins) which are just too unpleasant to quote.
Undoubtedly it is becoming harder and harder to control what employees are saying on online accounts, especially if you do not have access to them; but there is some limit as to what employees can post about you, your business and your colleagues.
I have been called in to help a number of organisations conduct disciplinary sanctions on employees who take the ‘freedom of speech’ rule too far. And yes, disciplinary sanctions for these types of matters are perfectly OK.
A social media policy
Provided that there are legitimate reasons for further investigating a public posting on a social media account, then you are within your rights to do so.
More often than not, reasons relate to spending time on social media sites when the employee should have been working (what a quaint old fashioned idea!); publicly criticising an employer in a way that can potentially damage business; bullying and harassment and issues relating to confidentiality.
There are ways you can limit your exposure to these types of risks and threats however, and having a solid social media policy in place is one way that you can help to control this.
Firstly having a robust social media policy will remind employees of appropriate conduct on their social networking account and draw up guidelines concerning breaches of contract.
This will help to clarify the grey areas of social media conduct which can be legally debatable; particularly when it comes down to dismissal on the grounds of misconduct.
A lot of businesses use social media as a method of boosting business. Some even require employees to be on LinkedIn or Twitter. Having a social media policy can also outline how to use social media as an advantage for the company whilst outlining how best to achieve your business goals.
Relatively few businesses are monitoring or attempting to control their employees’ behaviour on social media websites. If you haven’t done so already, I’d recommend getting that social media policy in place ASAP before an employee takes their right to freedom of speech too far.
Kate Russell, otherwise known as the HR Headmistress, is managing director of employment law and HR consultancy, Russell HR Consulting.
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