UK: US And UK Case Law Update

Social Media In Employment
Last Updated: 13 November 2012
Article by Andrea L. Ward and Scott S. Cairns

The law governing social media is rapidly evolving. Within the last year, the UK has seen a rise in reported cases from the employment tribunals, which have added to the growing body of case law and opinion on the subject of social media in the workplace, allowing employers to form a better understanding of what is and what is not acceptable for their employees. The overwhelming conclusion for many employers is that social media policies are not only useful, but are fundamentally important, if they are to defend employment claims. However, to be effective in practice, the policy must 'fit' the business and set appropriate standards to be complied with, in context. Recent U.S. case law on the subject is similarly focused on appropriate policies and training for employees. Given the variations in employee rights, employers dealing with these issues on both sides of the Atlantic may be interested in the U.S. approach and reaction to the cases considered below.

Most of the UK employment tribunal cases arise following employee terminations for emails, Facebook posts or comments, which are deemed by the employer to be offensive and acts of gross misconduct, leading to claims of unfair dismissal against the employer. UK employees with more than two years' service have the statutory right not to be unfairly dismissed. This right is governed by the Employment Rights Act 1996 (ERA), such that employers need to show that they have a potentially fair reason (from a prescribed list of five in the ERA), before dismissing any employee. In many cases gross misconduct is the reason relied upon, but the employer still needs to follow a fair and reasonable procedure, before dismissing the employee for that reason. Employment tribunals dealing with these cases must examine whether dismissal was within the range of reasonable responses available to a reasonable employer, in the circumstances, so the facts of each case, in context, are very important.

Claims in the employment tribunal may be coupled with complaints of discrimination, breach of contract and, more recently, breach of privacy, but the common theme in all these cases is the apparent lack of awareness on the part of employees when it comes to their online habits and the impact on others, including their employer and third parties, such as customers. A quick review of some of the cases (even a Google search) reveals the extent of this problem and the apparent differences in treatment shown by some employers when dealing with these matters.

Employees have been dismissed, on the grounds of gross misconduct, for ill-advised Facebook comments about their colleagues, managers or company generally. For example, contrast the (fairly dismissed) employee in Dixon v GB Eye Ltd, ET Case. 2803642/10, who, on suspension from work, posted abusive comments about her colleagues, such as: "the biggest bunch of wankers known to the human race! Full of gingers, fat wankers, sleazes, brown noses and cokeheads!", and the (unfairly dismissed) employee in Whitham v Club 24 Ltd t/a Ventura, ET Case. 1810462/10, who declared on her Facebook page: "I think I work in a nursery and I do not mean working with plants".

Damage to reputation is a key consideration for employers, when dealing with these comments, as they can easily be made public, even where privacy settings are in place, as a result of being forwarded on to others, printed off and shared, or intercepted without the creator's knowledge. This is often how such comments are brought to the attention of employers (by Facebook 'friends' who work with the creator of the post or online message). However, to argue reputational damage as a reason to dismiss employers one will need to show that the risk is real, not just fanciful. This needs to be tested during the investigation process, by asking the right questions of those involved. Making an assumption that reputational damage will automatically follow is not the correct approach.

While the U.S. does not have explicit protections against unfair dismissal as exist under UK law, similar results are being reached through laws such as the National Labor Relations Act (NLRA), which regulates employment relations in the United States. In particular, Section 7 of the NLRA permits employees to engage in "concerted activity", i.e. activity that expresses views regarding issues of mutual interest to employees, such as commentary on wages or other terms and conditions of employment. Adverse employment actions, such as terminations, for engaging in such protected activity, violate the NLRA and are illegal.

The National Labor Relations Board (NLRB), the federal agency charged with enforcing the NLRA, issued two decisions this September that begin to define how employers can respond to postings on social media such as Facebook.

In a decision that is perhaps of most interest to UK employers, Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, Case No. 13-CA-46452 (28 September, 2012), the NLRB agreed that the employer could properly terminate an employee who made Facebook postings about an embarrassing automobile accident at a Land Rover dealership owned by the employer. The action involved a customer's son who was allowed to sit behind the wheel of a Land Rover at the end of a test drive and apparently hit the accelerator, driving the vehicle into a pond. The employee posted accident pictures and used the caption "This is your car. This is your car on drugs." The NLRB found that the posting was "obviously unprotected by the [NLRA]" because it was posted by the employee solely as "a lark" and with no connection to any employment terms or conditions.

This result may be similar to decisions by UK Tribunals who find that certain employee remarks on social media sites are not protected by the provisions on freedom of expression under Article 10 of the European Convention on Human Rights, such as Preece v. J.D. Wetherspoons plc, ET Case No. 2104806/10 and Crisp v. Apple Retail (UK Ltd), ET Case No. 1500258/11.

The NLRB has also relied on Section 7 of the NLRA to define the requirements of employers' social media policies. In Costco Wholesale Club, Case No. 34-CA012421 (7 September, 2012), the National Labor Relations Board found that Costco's electronic posting rules were improperly overbroad and could infringe employees' Section 7 rights. Costco's policy had banned workers from posting statements online that harm the company's reputation or anyone else's. Although the Board's decision laid out no specialized criteria for evaluating whether social media policy use restrictions inhibit employee rights under the NLRA, it held that Costco's policy was too broad because it could be read as a ban on protesting the company's treatment of its workers. The Board criticized Costco's policy because it said nothing to suggest that it excluded protected activity. Thus, employers certainly should include such a disclaimer in their policies. Although the decision was not explicit, it should be read to advise employers to give specific examples of the types of conduct their policies target, such as not giving away trade secrets or not disclosing protected customer information.

In the Karl Knauz Motors case discussed above, the majority of the Board again found the employer's handbook, which simply called for "courtesy" on the part of employees, to be unlawful because employees could interpret its prohibition against disrespectful conduct and injurious language as encroaching on the Section 7 rights. Again, this provision could have been saved by a more explicit discussion of what types of behaviour were permitted, and which were prohibited.

These cases, in which courts begin to define when employees' adventures in cyberspace legitimately become the employer's concern, urge caution by employers on both sides of the Atlantic.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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