We now live in an age where social media is part of our everyday life. I have yet to come across an employer that has not had some element of difficulty in the workplace as a result of social media.
What your Social Media Policy should cover:
- Who is covered
- Scope and Purpose
- Do’s & Don’ts
- Compliance with related Policies
- Personal use of Social Media
- Prohibited use
- Business Use
- Contractual Preventions
What to watch out for
- Breach of Company Policy
- Vicarious liability
- Bullying and harassment
- Reputational damage
- LinkedIn ownership
Facebook – Transley v B&Q
Employee comment “this place of work is beyond a f**king joke” and that he would soon be “doing some busting”.
Dismissal was unfair. Unreasonable for the employer to conclude that these comments were a threat to the business, and the relationship between employer and employee was not so damaged that dismissal was necessary.
YouTube – Taylor v Somerfield Stores Ltd
20-second video posted on YouTube by an employee of another employee in uniform being hit over the head with a plastic bag full of other plastic bags in a storeroom. The video received eight hits and the employee took it down, unprompted, after three days.
Dismissal was unfair. No evidence that video damaged Company or that employer could have reasonably believed reputation would have been affected
Email – Royal Bank of Scotland
An employee was not shown a disciplinary scoring matrix which graded offensive material into categories, Grade 5 relating to material illegal to possess. Employee received and forwarded pornographic images via his work email.
Dismissal was unfair. Failure to disclose the matrix meant the employee did not have the opportunity to address the application of the criteria to their case. Decision to dismiss therefore fell outside of the range of reasonable responses.
Unfortunately, there is no one size fits all cap or guidance on what will or will not amount to a fair dismissal for social media. Factors the Employment Tribunal are considering are:
- Employee’s job role
- Employee’s seniority
- Seriousness of the misconduct
- Who the organisation is
- The Companies policies and procedures
- Disclosure of confidential information
- Risk of reputational damage
- Mitigating factors
- Length of service
- The comment itself and how long it has been out in the ether
Practical advice and tips for employers
- If you do not have a Social Media Policy in place we recommend that you introduce and implement a policy so that your employees have a clear guideline of what is expected of them and what can result in disciplinary action.
- You should also update your disciplinary, grievance and bullying policies to ensure that they explain what would constitute disciplinary action, when to raise a grievance in relation to social media and what they should do if they are being bullied on social media.
- Avoid knee-jerk reactions – ensure you comply with your disciplinary procedures. Do not let the speed and permanence of the social media interaction lead you to abandon your normal procedures otherwise you could face a successful unfair dismissal claim because you did not follow the correct procedure!
- If an employee raises a grievance or complains about comments made on social media such as Facebook you should investigate the complaint and take disciplinary action if appropriate. If you require help or assistance or even would like us to investigate the complaint/grievance please do not hesitate to contact us.
- If you are made aware of derogatory or inappropriate behaviour which has occurred in or outside of the workplace which places your reputation and/or the Company into disrepute then again you need to investigate and take appropriate disciplinary action.
If you have any questions or you need assistance in disciplining an employee for activity on social media or you need to introduce a Social Media policy then please contact Rebecca Hardy on 01905 676 757 or [email protected].
Practice Director & Head of Client HR