Social media – good and bad
Social media is great, isn’t it? If the kids are posting selfies from the back seat they might not annoy the driver so much, and some even say it is responsible for the low crime statistics on the basis that all those wannabe criminals out there are just too lazy to put the igadget down and get out there and steal hubcaps.
The increasing options for social media both reflect and drive the desire for its use. The list is endless: there are the old timers such as Facebook and YouTube, “teenagers” such as Instagram and Snapchat, and mewling infants such as Hinge and Secret. And for the brave or foolish amongst us there is always Ashley Madison.
Social media is increasingly being used as a marketing tool to expand and increase an operator’s presence in the transport market. Apart from general advertising and customer access, it can be used to receive and answer customer complaints and provide updates on travel routes. So, so far so good, so what’s not to like?
In the olden days (10 years ago?) one could be fairly confident that a chat down the pub would stay as a chat down the pub. Now that chat down the pub can be in front of millions in a matter of moments. And the information that gets aired is subject to little or no control, is often anonymous and can be hugely damaging to the individuals concerned, or as in the focus of this article, to a company or business that is identified.
The legal framework
Employees with more than two years’ service have the right not to be unfairly dismissed. A dismissal may be fair if it falls into one of the potentially fair reasons (capability, conduct, redundancy, breach of statutory duty/restriction and some other substantial reason).
If the reason for the dismissal is an employee’s conduct (or misconduct), to ensure that the dismissal is fair, an employer must demonstrate that:
it reasonably believed that the employee was guilty of misconduct;
In relation to social media, this may be relatively easy for an employer to demonstrate if the comments were made from an employee’s personal account. If the comments were posted under an anonymous account or fake I.D. then that may be more difficult to show. Sometimes the employer may have to consider arguments that a personal account was hacked.
it properly investigated the conduct in question;
An investigation need not be exhaustive, but it must be reasonable. This would usually involve obtaining clear evidence of the posting, and that this particular person was responsible for it.
I have had clients ask if the police will get involved in such matters. The answer is usually no. There usually has to be very clear evidence of harassment or an actual or potential criminal offence.
This means that in nearly all cases it will be up to the employer to do the investigation.
the decision to dismiss was within a band of reasonable responses;
This means a tribunal does not ask itself whether it would have dismissed the employee in these circumstances, rather it asks itself whether a reasonable employer could have done so.
This includes looking at the impact of the comments. This will involve an assessment of how widely the comments were circulated, whether to a limited group of friends or to the public at large.
In a recent case, I invited an employment tribunal to assess the significance of a Tweet. Leaving aside the point that I can never understand how anyone except a philosopher or a poet thinks they can say much of value in 140 characters, the employment tribunal considered it relevant that the ex-employee had not made the original post but had re-tweeted it to their limited number of followers.
Dismissal and social media
An employer can rely on an employee’s conduct outside of work in order to dismiss an employee if they can show that the conduct has an effect on the employment relationship.
There are an increasing number of cases in this area, but in legal terms, the subject is comparatively new and as is often true in such areas, the courts have emphasised that each case needs to be assessed on its own facts. That said, the cases described below demonstrate how the tribunals have applied their general discretion in particular cases, and some common principles can be established.
Actual risk or potential risk
The recent case of British Waterways Board v. Smith 2015 involves comments made historically on a private Facebook account. Comments made by Mr Smith were discovered during the course of investigations into a grievance raised by him against his employer. The comments included; “what joy, 2 sleeps til back to my beloved work NOT” and “going to be a long day, I hate my work” and comments relating to drinking alcohol whilst on standby (which was against company policy).
British Waterways Board (BW) investigated and, following a fair disciplinary procedure, dismissed Mr Smith on the grounds that the comments had brought his capabilities into question and had opened BW up to condemnation in a public forum.
Mr Smith brought a claim for unfair dismissal. The dismissal was held to be unfair by the employment tribunal on the basis that the comments did not actually have a negative impact on BW (e.g. on their relationship with clients or create problems with staff). However, on appeal, the employment appeal tribunal said that the tribunal had made decisions based on their own assessment of the facts and not the employers. BW had carried out a proper investigation and were entitled to dismiss Mr Smith on the basis that the comments could have caused serious harm to BW.
BW did not have to establish actual negative impact, rather it was reasonable to take into account the potential for negative impact. This is a principle that is recognised elsewhere in employment law (see for example Wincanton Plc v Atkinson where a driver drove without the proper licence) but is particularly helpful here since an employer who is a victim of social media abuse is unlikely to want to go out and search for evidence of actual adverse impact to its reputation.
Thus, the central proposition is that an employer must make sure that they properly investigate the comments made on social media and make sure that decisions are made on the basis of an assessment of the risk of harm.
Comments about someone else
Comments on social media can also be a cause for dismissal even if they do not relate to the employer itself.
In Game Retail Ltd v Laws 2014 employees were encouraged to “follow” Game Retail Ltd.’s regional stores on Twitter. Mr Laws posted offensive comments (unrelated to his employer) on his personal account which was followed by 65 regional stores. In the evidence before the tribunal it was alleged that the comments were offensive to “other groups of people including dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the police and disabled people”.
Mr Laws was dismissed on the basis that the comments could be seen by other employees and customers. The employment tribunal concluded that the dismissal was not a reasonable response because the posts were for private use and the employer could not establish that Mr Laws’ comments could be linked back to Game Retail Ltd.
The Employment Appeal Tribunal disagreed stating that Mr Laws’ comments could not be considered private because he had not restricted the settings on his profile. They said that in assessing the risk of harm caused by the comments on social media, an employer must strike a balance between protecting the business’ reputation and allowing an employee’s freedom of expression in their personal life. This would be dependent on the facts of each case.
Case Study 1
Jessica works for Happy Buses as a driver on the Saturday late night shift. Happy Buses has a company Twitter account to advertise their services and update customers on any delays.
Jessica also has a Twitter account which is for personal use only. She has made the settings private so that only people who she has approved can see her account. She is only ‘followed’ by a few colleagues who are also friends. There is no reference to her employment with Happy Buses on her profile.
After her shift on a Saturday, Jessica posted a photograph of herself drinking alcohol. Happy Buses become aware of the post and investigated. Jessica explains that the photograph was historic and was not from the night of her shift. She confirmed that she had not been under the influence of alcohol during her shift on the Saturday. Jessica has an unblemished record and has been a trustworthy, reliable employee.
After a disciplinary procedure, Happy Buses would like to dismiss Jessica on the grounds that pictures of her drinking alcohol may damage the reputation of the company, especially as she is a driver.
In these circumstances, Happy Buses would need to establish how Jessica’s comment would damage the reputation of the business or how it has damaged the employment relationship with her. Given that Jessica’s profile is very private and is not associated with the company, it may be difficult for Happy Buses to argue that her post is damaging to the company’s reputation. Jessica has an unblemished record with the company and therefore it may also be difficult to argue that this post is sufficient to damage that relationship. Happy Buses might request that Jessica removes the photograph and remind her of the social media policy (assuming there is one).
Case Study 2
Phillip works for Smile Travel in their head office. He has a personal Facebook account which shows that he is employed by Smile Travel and he regularly reposts articles from the Smile Travel business Facebook account. Smile Travel has a detailed Social Media Policy which suggests that employees keep their profiles private and reminds them of the impact of negative comments about the company. It highlights that such comments may be considered gross misconduct and be cause for dismissal.
Following a difficult day at work, Phillip posts a comment on his profile page about how much he dislikes his job and what a horrible company Smile Travel are to work for. The comment is reposted across Facebook numerous times and receives many comments, including from one of Smile Travel’s leading clients. Smile Travel would like to summarily dismiss Phillip.
In this situation, it may be easier to dismiss Phillip fairly as the comments were clearly linked to the employer, there seems a reasonable risk of harm to reputation and Phillip was also made aware of the impact on Smile Travel because of the Social Media Policy.
Employers can mitigate the risks around social media abuse implementing and making staff aware of, detailed social media policies. The policy should set out acceptable and unacceptable behaviour to demonstrate to employees the impact negative comments can have on the employer. If appropriate, the policy should also make it clear that a breach may lead to a dismissal. But even if a policy exists, the facts of each individual case should be investigated before a decision is made.