Facebook and Employment

As the number of cases regarding dismissals for the misuse of Facebook at work or in relation to employment increase, employers are being advised to revise their related policies to adequately protect them when considering disciplinary action against their staff as a result of misuse of social media.  We must be mindful that for many Facebook is an accepted forum for frank discussion with not just friends, but friends of friends, and derogatory statements about the employer can potentially bring the Company into disrepute.

Things to consider when compiling a policy include the following:

• Ensuring that employees are aware that derogatory and inappropriate remarks made in this way will be deemed to be potential misconduct and subject to disciplinary investigations.
• Reminding employees of access to privacy settings on Facebook.
• Reflecting the potential seriousness of inappropriate comments on Facebook and the possible outcome of disciplinary action in the Disciplinary Policy.  In some cases and depending on the seriousness of the comments, this may even result in summary dismissal.  This would likely include bullying using social media as well as making discriminatory comments.
• Ensure that the policy covers photographic and video material including inappropriate postings to YouTube.

Of course, your Park City HR Consultant can develop a policy appropriate to your organisation’s specific needs.

We should not ignore of course, that Social Media has an important part to play in the advancement and promotion of our organisations and is often a key part of the overall communication strategy with customers, clients and other third parties important to the business.

Where your employees are tasked and/or encouraged to use Facebook, Twitter etc. as part of their role within the Company you may wish to consider safeguards such as the following:

• Ensuring that such tasks are given to a limited number of employees whose role explicitly outlines such communication as part of their remit.
• Ensuring that those employees are adequately trained and briefed in acceptable language and content when preparing information for distribution in this way as well as application of confidentiality policies and intellectual property rules.
• If necessary, ensuring that items are proof read or checked for appropriateness of content.

Of course, this is not an exhaustive list.

Recent case law has highlighted some areas that form important considerations for employers.

Whereas in the past, employees have been dismissed for simply using the word ‘boring’ about their employment, it is important to note that each case should be looked at in light of the available evidence and the severity of the comment as well as the real damage or detriment inflicted on the organisation.  Where length of employment qualifies an employee to make a claim for unfair dismissal, a minor transgression may not suffice to terminate employment.

In the case of Smith vs Trafford Housing Trust Mr Smith made comments about gay marriage that the Trust felt were inappropriate and had caused offence to another employee.  He was subsequently demoted.  Mr Smith received only a small award (which was due to the fact that he was deemed to have accepted his employment at a lower standing within the organisation and therefore his award was calculated according to his loss of earnings between the two posts).  However it is important to note that the Court found that the content of his posting was written in such a way as to be objective and inoffensive, it was not posted on behalf of the Trust and was not sufficiently employment-related to warrant the action taken. 

In Hasler vs B&Q, a comment made about the Company on Facebook as a means of ‘letting off steam’, according to Mr Hasler, was also seen by the Tribunal as insufficient to warrant his dismissal despite the fact that the Company had undertaken a thorough investigation and followed their proper procedure, he had breached the social media policy and was aware that his comments could be accessed by 40-50 other employees.  Mr Hasler had a clean disciplinary record, there was no evidence that others were offended by the comments, and there was no real threat to the Company albeit Mr Hasler had arguably made a threat to inflict damage.  The Tribunal however did reduce the basic award by 50% as Mr Hasler had made inappropriate comments and had shown no remorse or understanding of the consequences of his actions.

The lesson to bear in mind here?  Inappropriate comments in themselves may not warrant dismissal.  It is important to consider the wider effects on the business.

If you would like assistance in developing a Social Media policy appropriate to your organisation’s specific needs, then please contact Kelly Halls on 0800 542 7550 or by email at [email protected].

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