Social media cases are often newsworthy, particularly where the conduct of individuals occurs outside work on their own personal social media accounts. A review of the reported cases highlights the extent to which, in certain circumstances, Tribunals are willing to find in favour of an employee. Central to any Tribunal’s decision making will be the extent to which an employer implemented and communicated a social media policy, whether a fair disciplinary process was followed, and whether the employer had carried out an assessment of the potential damage caused to it by an employee’s comments. This week’s Insight looks at a number of cases which have established these principles, including some notable recent cases.

In Game Retail Ltd V Laws (2014), the EAT overturned a decision by a Tribunal that a dismissal for posting abusive tweets from a personal Twitter account was unfair. The EAT held that the Tribunal had failed to consider the public nature of Twitter and did not consider whether the employee’s private use of Twitter was truly private, given that he had not altered the privacy settings of his account and was followed by 65 Twitter accounts belonging to the company’s stores.

By contrast, in Smith v Trafford Housing Trust (2012) the High Court held that a Christian employee was entitled to express his views about gay marriage on Facebook and that doing so did not constitute misconduct. This was despite the fact that the employee had identified himself as a manager of the Trafford Housing Trust on his Facebook page. The employer had therefore acted unlawfully in demoting the claimant, purporting to rely on contractual provisions prohibiting bringing the employer into disrepute and causing offence to colleagues.

Lastly, a Tribunal recently held that an employee working as a lab technician was unfairly dismissed after he took a photo of himself wearing an Osama bin Laden mask and then posted that photo on Facebook (in an unreported 2015 case). The photo was taken whilst the employee was in the lab, and included a fragment of the employer’s logo. Understandably, the employer was concerned that this would bring the company into disrepute. However, the Tribunal ruled that the dismissal was unfair. Reports indicate that one factor which influenced the Tribunal was the absence of a social media policy to rely on.

These cases highlight that employers need to have clear and robust social media policies in place, and that these should be communicated to employees. A policy should cover social media use outside of work, and clearly set out the kinds of behaviours which might be considered misconduct. As is often the case, process is likely to be key to any defence against a subsequent unfair dismissal claim - employers should therefore avoid any knee jerk responses.

There is perhaps some comfort for employers in the fact that, in the above 2015 case, the Tribunal ruled that any compensation awarded to the claimant would be cut by 60% in recognition of the employee’s fault. However, the above cases do highlight the potential difficulties faced by employers dealing with social media cases, and employers would be wise to remember that an apparently textbook case of misconduct will not, without the employer having in place an appropriate social media policy and following a fair procedure, necessarily translate to a fair dismissal.

Posted on 27/03/2015 in Legal Updates

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