Social Media (Ab)use

Social media is an increasingly popular and growing area due to the number of benefits it offers to businesses, ranging from the ability to communicate with a wide audience, to using it for recruitment purposes. Recent case law demonstrates the importance to employers of having a clear social media policy in place, to ensure that their employees are aware of any specific rules which need to be followed and what actions may amount to gross misconduct potentially resulting in dismissal. The social media policy should be well communicated to staff and where possible, should be linked to other policies and ideally, the staff should be given training on social media use.

Four things you CAN probably sack your employees for

The Troll and Apple – The claimant posted derogatory comments about his employer, Apple Store, and its products on a “private” Facebook page outside of working hours. The posts were seen by a colleague of the claimant who notified the employer. The claimant was subsequently dismissed for gross misconduct. The tribunal recognised the importance of brand image and the fact that the claimant had been given extensive training on protecting the Apple brand which included social media rules and policies. It was clear that Apple’s reputation could be damaged by the employee’s comments, and it was held that the dismissal was fair. The Tribunal also took the view that Facebook posts were not truly “private” and could have been forwarded on very easily, with the claimant having no control over this process.

Time at the Bar – After an incident at work involving two customers, the claimant posted derogatory comments about the customers on her “private” Facebook page during working hours. In one of the comments she stated that she hoped that one of the customer’s “hip breaks”. It was estimated that the comments could be viewed by at least 40 to 50 people and possibly by up to 646 people. Customers reported her to her employer and she was dismissed. The Tribunal accepted that the dismissal of the claimant for gross misconduct had been fair in the circumstances because the claimant had breached a clear and well-communicated policy. This was the case even though her comments had been made on what she believed to be a private Facebook network, and the fact that she had made the comments in reaction to a “torrent of abuse” received from customers.

Men Behaving Badly – The claimant made a number of comments on his Facebook page outside of working hours about the promiscuity of a female colleague. The comments included a reference to his employer. The post was read by his Facebook friends and some work colleagues. When asked to remove the post he continued to make offensive comments about his workplace and about the person who reported him. He also expressly stated that he was not going to apologise. The claimant argued that his freedom of expression had been breached. The Tribunal was not impressed by this and stated, “When the Claimant put his comments on his Facebook page, to which members of the public could have access, he abandoned any right to consider his comments private.” It is also worth noting at this point that there was no breach of privacy and that the claimant was not entitled to make comments that damaged the reputation and rights of others.  

Five things you probably CAN’T sack your employees for

Leaving it Behind – The tribunal found that a professional rugby player was fairly dismissed for posting a picture of his naked bottom on Twitter, which was visible to over 4,200 followers. Although it was deleted 48 hours later his contract was cancelled. The Tribunal took the view that there was clear evidence that the employer wanted him to leave the club and that this was the primary reason for dismissal, these actions could not amount to a breach of contract, and it was very unlikely that anyone who saw the tweet would have assumed that it had been condoned by the club. As such, the incident by itself was not serious enough to justify dismissal.

Jackass Wannabes – The claimant had posted a video on YouTube showing two of his colleagues hitting each other with plastic bags and was dismissed for bringing his employer, Somerfield, into disrepute. The tribunal did not accept that there were sufficient grounds for dismissal: it was influenced by the fact that there were only eight views of the video clip and no loss had been caused to the employer.

Viral Ranting – The claimant was dismissed for posting comments about her workplace on Facebook. After a particularly difficult day she posted a comment saying “I think I work in a nursery and I do not mean working with plants”. This was only visible to her Facebook ‘friends’ and not visible to those not connected to her. The tribunal held that not taking the employee’s clean disciplinary record, some serious mitigating personal issues, and the fact that she had immediately apologised, into consideration was an unreasonable failing on the employer’s part. It was held that a reasonable employer would not have dismissed in this situation. There was no evidence that the employee’s post negatively impacted on the employer’s reputation or its relations with clients.

On a separate note, inappropriate use of social media may lead to claims for bullying and/or harassment in the workplace.

Phone jacked – Two employees got hold of a colleague’s iPhone and without his permission changed his Facebook status to ‘finally came out of the closet. I am gay and proud’. This led to a successful claim for sexual orientation harassment on the basis that it was reasonable for him to be embarrassed and distressed by the status update and an unwanted intrusion to his personal life. As the comments were made in the course of employment the employer was vicariously liable.

Lastly, a quick look at the world and social media diversity.

Global stories – you’re fired!

•             The prison official who joked about prison rape (Facebook)

•             The bartender who called black people un-hireable (Facebook)

•             The hospital employee who suggested police should commit genocide in Ferguson, USA (Facebook)

•             The Taco Bell employee who urinated on a signature dish (Facebook)

•             The Russian paramedic who took selfies with dying patients (Facebook)

•             The assisted-living staffer who took a photo of a client on the toilet (Instagram)

•             Two employees of Delaware, USA, Thai-Japanese restaurant were fired after posting photos of credit card receipts on social media (Instagram)

•             Denver, USA maths teacher tweets about her attractive students and how she likes to smoke weed (Twitter)