More than half of the population worldwide uses social media. Facebook is the most frequently used social media platform, with 1.49 billion active users recorded at the second quarter of 2015.
However, Facebook is not universally popular with employers. Workers have been found responsible for bad-mouthing employers, venting their anger about a work situation, or uploading a post whilst absent from the workplace which casts doubt upon them being too ill to work.
Employees are often oblivious to the fact that employers frequently check social media, or are made aware of employees’ posts by a third party. This can result in the employee being disciplined or dismissed because of their actions even if the employee claims the comments made were untrue.
A recent case, British Waterways Board v Smith (2015), highlights the pitfalls for employees in using social media.
Mr Smith made comments on Facebook about his job and managers and also suggested that (two years earlier) he had been drinking alcohol whilst on standby, which was prohibited.
In disciplinary proceedings, he denied this fact and tried to rely on the comments being made ‘in jest’ and in ‘banter’. He was dismissed on the grounds of gross misconduct as the comments had undermined the confidence his employer had in him. It was also said that Mr Smith’s actions had undermined the confidence of the public in the employer.
He brought a claim before the Employment Tribunal (ET) on the grounds that the dismissal was unfair, which the ET agreed with.
The employer appealed the case to the Employment Appeal Tribunal (EAT), who later overturned the earlier decision and found that the dismissal was not unfair.
The Employment Appeal Tribunal decided that the ET had erred in law because they had substituted their own view for that of the employer, in that they had concluded that Mr Smith was responsible for misconduct, rather than gross misconduct as the employer had found. The EAT also believed that the ET had failed to have proper regard for the fact that the level of damage that could have been caused to the reputation of the employer’s business was extremely high.
So, what can employers do to prevent such activities occurring within the workplace?
Firstly, an employer should ensure that there are relevant policies and procedures in place that cover the use of social media, and ensure they are regularly updated to take account of developing trends and new social media platforms.
Employers may also consider offering training to employees on the potential disciplinary consequences of posting material online, protecting the employer’s image and the impact of outside of work activities where uploaded to social media.
For further information, or advice on implementing a comprehensive policy, please contact a member of our Employment team.