Most organisations recognise that all forms of technology present risks in the workplace and some form of guidance is necessary to protect the interests of company, employees and third parties associated with the organization. Social media is a case in point. In the Facebook, Twitter, Google+ and LinkedIn jungle of 2015, you would be crazy not to have a social media policy of some kind to tell your workers what they can and cannot post online and give yourself the structure and specific permissions to deal firmly with transgressions.
Problems tend to arise when an employee gets home from work after a tough day and vents his or her anger with a Facebook post or tweet along the lines of “I’m fed up of working for X, they treat me like dirt.” Sometimes the remarks are considerably more industrial.
This sort of post, particularly if seen by a large number of people, upsets or angers the individual about whom the remark is made, which often results in workplace disharmony and grievances. They can also damage the company’s reputation and this could be a dismissable offence. We’ve seen it so often; a moment’s unguarded Facebooking can lead to months of misery for employers and their employees and unintended results.
In some cases social media posts that are completely unrelated to the company, but are seen as an offence by those who read them, have been treated as dismissable offences by companies. In the recent case of Game Retail v Laws, Mr Laws was Game’s risk and loss prevention investigator. He had a personal Twitter account and followed the stores for which he was responsible so that he could monitor inappropriate activity. 65 of the Game stores followed him back.
Mr Laws was disciplined and dismissed for posting offensive tweets. Initially, the employment tribunal found the dismissal to be unfair. It said that the tweets were of a private nature, had been posted using his own device, outside his working hours and there was no evidence that other Twitter users had connected him witth the company. The tribunal also took into consideration the fact that the company’s disciplinary policy didn’t specifically set out that using social media in this way could be potentially be sees as gross misconduct.
On appeal the Employment Appeal Tribunal (EAT) disagreed and found that the tweets couldn’t be considered private usage. Mr Laws had not ensured that his tweets only went to private recipients. He hadn’t adjusted his settings to restrict his followers. The EAT also considered that he was tweeting knowing that 65 of the Respondent's stores were following him. It remitted the case back for another determination by a new tribunal.
Whatever happens, you must carry out a proper and reasonable investigation. The principles of natural justice apply – certainly as far as a tribunal is concerned – and an employee must know what he or she has been accused of and have the opportunity to properly respond.
Each case turns on its own facts, but you will be in a much stronger position if toy make clear the standards of social media conduct that they require and what the consequences of breach will be. When you’re investigating potential social media breaches give consideration to the following points in determining whether there is grounds for disciplinary action or not.
- What the tweets say.
- The employee’s settings- have these been restricted?
- The association that may be made between the employee and the employer (not just in the profile section, but throughout the twitter feed).
- Use of separate accounts for personal and work purposes.
- What the company disciplinary policy says about sanctions for social media misuse.
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