UK: Social Media - Dare Employers Get Involved?

A number of recent cases have highlighted the risks for employers in managing their employees' use of social media. Brian Palmer from our Employment Team examines the position and suggests how employers should best deal with this increasingly important area.

Employment Judges recently have found little difficulty in holding that employees' posts on Facebook do not attract the necessary degree of privacy to protect them from disciplinary action by their employers. In Taggard v Teletech, the Tribunal said "When the Claimant put his comments on his Facebook page, to which members of the public could have access, he abandoned any right to consider his comments private". In that case, the Tribunal found that an employee's dismissal was fair after he posted discriminatory and harassing comments about a colleague on his Facebook page.

Similarly, in the case of Crisp v Apple, the Employment Tribunal found that Apple's dismissal of Mr Crisp was fair after he published comments criticising his employer and its products. In that case, the Tribunal was persuaded by the significant lengths to which Apple goes in its induction of new employees to inform them of the importance of Apple's image and reputation and the potential consequences of damaging that reputation. That Employment Tribunal commented that, "Facebook posts were not truly private and could in fact have been forwarded on very easily".

In contrast in Smith v Trafford Housing Trust the High Court found that an employee was entitled to express his views on Facebook and that doing so did not constitute misconduct.

Mr Smith, a practising Christian and occasional lay preacher, posted a link to a BBC article headed, "Gay church marriages to be given the go ahead" on his Facebook page together with the comment, "an equality too far". Further comments were made by Mr Smith who explained that he was not against civil marriage for same sex couples, just that he disapproved of same sex marriage in a church context.  As a result, his employer found that he was guilty of gross misconduct. Taking into account his long record of nearly 20 years' service, he was demoted rather than dismissed, being given a non-managerial position with a 40% reduction in his pay. Mr Smith issued a claim for breach of contract in the High Court. He remained employed by the Trust under protest at the demotion.

Unlike in the Taggard case, the High Court analyzed the extent to which Mr Smith's Facebook page was accessible to the public. His "wall page" identified him as an employee of the Trust. He had 45 work colleagues among his Facebook friends (of whom at least one was offended by his comments, characterising them as "blatant homophobia"). His wall was accessible by all 201 of his Facebook friends and by "friends of friends".

The Court found that in this particular context, the use of Facebook was not sufficiently work-related to justify the application of the Trust's disciplinary procedures. Under his employment contract, the trust could demote him under the disciplinary policy only as a disciplinary sanction for "misconduct". The High Court did not believe that Mr Smith's actions could possibly amount to misconduct. That removed the contractual justification for the demotion and lead to the Court finding that the Trust was in breach of contract.

The High Court held that no reasonable reader of Mr Smith's page could rationally conclude that his comment was posted on behalf of his employer. It was clear, the Court said, that Mr Smith used Facebook for personal and social reasons rather than work-related purposes.

Interestingly in striking a balance between the rights to protection from discrimination on grounds of religious belief and the right to protection from discrimination on the grounds of sexual orientation, the Court stated that the frank but lawful expression of religious or political views may frequently cause a degree of upset and even offence to those with deeply held contrary views but that this is a necessary price to be paid for freedom of speech.

The Court was at pains to emphasise that this issue was a matter of fact and degree but in this instance Mr Smith's post was not, objectively speaking, disrespectful or liable to cause upset, offence, discomfort or embarrassment.

It could not envisage how a loss of reputation of the organisation could arise in the mind of any reasonable reader of the comments or how comments prompted by the BBC article and by direct answers to questions by other people on Facebook could sensibly be regarded as "promotion" of religious beliefs.

This judgment is significant for both employers and employees with regards to the use of social media. Whilst it is understandable that employers should not be seen to be endorsing any potentially discriminatory views made by employees via social media, the content of online posts should be objectively assessed and any action which may be taken in light of such comments should be both reasonable and proportionate.

With regards to employees, this judgment underpins their right to express personal views in a private capacity. However, they should remain mindful and cautious about posting comments which could be deemed discriminatory, particularly when their employment is clearly listed on their profile.

What does this mean for employers?

• Employers should have a social media policy so employees know what is and what is not acceptable.
• When drafting a social media policy consider the purpose and objectives of the policy; balancing the employer's attitude toward social media use in its workplace, the nature of the employer's business and characteristics of the employees and workplace environment.

• A policy is only as good as its enforcement. Ensure your policy is made widely available and enforced consistently. Disciplinary action should be considered in the event that an employee breaches the policy.
• Employers should not take a disproportionate view of the damage or potential damage to their reputation, merely because conduct that does not put them in the best light comes into the public arena.
• Employers can take a strict approach in social media and disciplinary policies to genuinely offensive Facebook comments made by an employee who is identifiable as working for their organisation.
• However, an over-zealous reaction to a moderate expression of opinion made on a personal Facebook page may entitle the employee to take legal action.
• Promptly respond to complaints of harassment or discrimination via social media, just as you would in non-social media contexts.
• Consider setting up internet monitoring and alerts to maintain awareness of discussions and specific comments being made about the employer. However, in doing so, bear in mind the requirement that all such monitoring must be proportionate.
• Regularly review and update your policy to ensure it is kept current with changing law, technologies and business practices.

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.