With the increasing use of social media (according to Twitter, the number of tweets has grown to 500 million Tweets per day and to around 200 billion a year) there is greater risk of blurring the distinction between work and home, with repercussions for employers and individuals.
It is perhaps surprising that there have been relatively few reported cases and that the courts in the employment arena are not keen to set hard and fast ground rules. So what can we learn from the cases in the last 12 months?
The majority of the cases have been claims of unfair dismissal as a result of employees sharing information and expressing views via social media, with the key question being whether dismissal can be justified (or to use the legal test, is within the range of reasonable responses). The extent to which postings, tweets or blogs are private, who has access and the impact on an organisation’s reputation are all relevant considerations in determining the appropriate response. Most important, is demonstrating that the employer has made clear what is unacceptable via rules or a social media policy and when dismissal may result.
There seems to be increased recognition by the courts that derogatory comments do impact on an employer’s reputation and that employees should take greater care when using social media to the extent of even curbing some freedoms:
- In an early case from 2011, Ms Witham was found to have been unfairly dismissed for making negative comments about her colleagues – the Tribunal concluded they were relatively minor and there was no evidence that it had harmed client relationship. In this case the key relationship was with Skoda/VW and the individual was a Team Leader working with this client. She complained on her Facebook: “I think I work in a nursery and I do not mean working with plants”. Witham v Club 24 Limited t/a Ventura
- Another early case rejected the argument that an employer was able to fairly dismiss an employee who had posted his views on gay marriage on Facebook; this was despite the fact many colleagues were Facebook friends and it was also clear from his profile that he was a manager at the Trust. The High Court in that view concluded that his Facebook was personal (Smith v Trafford Housing Trust)
So we move on to the cases in the last 12 months , which seem to have moved the position forward and recognised that even private postings can overlap into the work place, leading to an impact on colleagues and the employer’s reputation. It also suggests that the courts are now recognising the impact such media can have in the workplace.
Game Retail Ltd v Laws illustrates this best : As a risk and loss prevention investigator , Mr Laws was responsible for 100 Game stores and had his own Twitter account , which was followed by 65 stores including both staff and managers. He posted 28 tweets containing expletives or bad language , such as “ This week I have mainly been driving to towns the arse end of nowhere …” going on to complain about other road users. The Appeal Tribunal accepted these tweets could be read by staff and customers – even though it would be those who chose to follow him. In addition there was no need to show that employees or customers had actually been offended – Game Retail had formed an honest and reasonable belief that they might have caused offence.
During the summer there was another Facebook case before the Tribunal which contrasted markedly with Smith v Trafford. In the case of British Waterways Board v Smith the employee posted comments on Facebook about drinking alcohol whilst on standby duties and complaining about his supervisors in colourful terms: “the f****** don’t even pay us for this s***” and “why are gaffers such p********…” His dismissal was found to be fair by the Appeal tribunal, who disagreed with the original employment tribunal. It was useful that the Board’s social media policy stated “any action on the internet which might embarrass or discredit BW (including defamation of third parties for example by posting on bulletin boards or chat rooms” was prohibited.
So the legal position, from an employment law perspective, is evolving and this evolution looks set to continue. A good resolution for the New Year might well be to revisit employer social media and disciplinary policies in light of these lessons.
Fox Williams LLP