The rise in popularity of social networks such as Facebook and LinkedIn has brought with it many potential benefits for employers and employees; from allowing us to stay in touch with old colleagues, to building up potential contacts and customers. However, what we do on-line can have negative repercussions, especially on the employer/employee relationship.
The main problem is not so much the length of time employees spend on social networking sites, but what they are posting on those sites. If employees write negative or critical comments about their employers on social networking sites, this can damage not only the relationship with that employee, but may have far reaching implications for the business, and may lead to a public relations battle. Indeed, in 2006 the Trades Union Congress dubbed Facebook's then 3.5 million users "HR accidents waiting to happen." So how can you reduce the risk of this happening, and what can you do if it does?
As this is a relatively recent problem, most of the incidents to date have not gone as far as an employment tribunal or a court room. However, there have been some well publicised instances, and in this article we will look at some real life examples and draw conclusions from these.
Bringing the Business in Disrepute
In instances where a business has suffered negative PR due to their employees' online postings, they have sought to rely on the "bringing the business into disrepute" clauses in their disciplinary policies or employment contracts to cover online misconduct. However, the employer has to prove that the business has actually suffered some damage to reputation in order to rely on it. In the case of Taylor v Somerfield (Unreported 24 July 2007, Aberdeen Employment Tribunal), an employee was dismissed after posting a video on YouTube of himself hitting a colleague with a plastic bag stuffed with other plastic bags whilst at the warehouse of his employer and whilst wearing his work uniform. The video was unclear and did not specifically mention the employer. The employee removed the video from YouTube after just three days, and it was only viewed eight times in that period, three of which were by his managers. The tribunal held that the dismissal was unfair because the company could not show that it had suffered any damage to its reputation, particularly in light of the very low number of viewings of the video. It was also discussed that the actions depicted in the video were not likely to cause damage to the company's reputation. This highlights that employers need to consider the individual facts very carefully before dismissing an employee under such circumstances, unless they can clearly show that actual damage has been caused by the employee's actions.
Additionally, the above case may serve as a warning for employers to ensure that their reaction is proportionate; if an employee posts something on a website with a very small audience (for example, a small group on Facebook), it may be more damaging to the employer to bring wider attention to that post by initiating disciplinary proceedings than if they had taken a more discreet approach. Of course, it may not always be obvious how many people have viewed or are able to view online posts, but it is a practical point to bear in mind.
Due to the ease of use, as well as our increasingly online messaging culture, employees might think nothing of criticising their employers in online blogs and social networking sites. In France, a British employee from the accounting firm Dixon Wilson, was sacked for "bringing her employers into disrepute" after it was discovered that she wrote a blog about her working life. She did not mention her work specifically, nor did she identify her real name, however, she did post pictures of herself, and her employers alleged that this was sufficient to identify them. In this instance, the employee won her unfair dismissal claim, again emphasising the need for employers to ensure that the conduct of employees is in fact damaging, before taking any dismissal action.
In the case of Grant and Ross v Mitie Property Services (UK) Ltd (Unreported 2009, Aberdeen Employment Tribunal), two employees were dismissed for excessive internet usage. The employees insisted that they had only used the internet during slow periods and it had not interfered with their work. The employer sought to rely on its internet usage policy which stated that the internet could only be used "outside core working times." However, the dismissal was held to be unfair, partly because of the insufficient clarity of this policy. Whilst this case is not about social networking specifically, it shows that such employment policies will be considered carefully by tribunals.
This can be contrasted with the case of 13 Virgin Atlantic employees who were dismissed in 2008 for making inappropriate comments about passengers and the company on Facebook. All employees were dismissed for breaking staff policy. This clearly demonstrates how having an explicit policy providing for such an eventuality meant that the employer was able to deal with the situation effectively and with a greater degree of certainty about the outcome, than the previous cases explored by this article.
Another example, which has been widely reported in the press, is that of Kimberley Swann, a 16 year old girl who was dismissed from her job after posting comments on Facebook that her work was "boring." Her employers were to a certain extent 'let off the hook', because she could not bring an unfair dismissal claim, as she had not been in the job for a year. However this highlights that if Ms Swann had been eligible to bring a claim for unfair dismissal, a clear online usage policy would have been of great benefit to her employers' case.
In response to this matter, the TUC general secretary Brendan Barber stated that employers need to develop "thicker skins" with regard to such comments, and compared it to "following staff down the pub to see if they were sounding off about work to their friends." This suggests that trade unions and tribunals may in future expect employers to be able to demonstrate clear and actual damage as a result of the comments and not merely hurt feelings. There is clearly a difference between chatting with colleagues in a pub and posting comments online; the audience is potentially much wider and the comments are officially recorded. This difference may not be initially obvious to many employees, given the prevalence of social networking sites in our lives and the general assumption that what we do on them is private. There is likely to be a need to educate the work force about what is and is not acceptable behaviour and the potential seriousness of posting such remarks online and which should be enshrined in a robust policy.
Up to Date Policies and Measured Actions
In light of the above, having up to date policies on internet usage, including posts on blogs and social network sites, both in the work place and at home is crucial. It is also important to make all employees clearly aware of such policies and to educate them about what is deemed to be unacceptable behaviour. It is vital for employers to be confident about taking action in relation to what an employee has written online, especially when it has been done outside of working hours, and having plain and unambiguous policies will enable businesses to be more confident and clear about the basis on which disciplinary action may be taken.
Also, when confronted with a situation where an employee has posted critical comments about their work online, employers should consider carefully whether dismissal is a proportionate response to the employee's behaviour. A major factor in making that decision, could be whether a clear policy on internet use inside and outside the workplace has been drawn up and clearly communicated to employees. A common sense approach to the situation is also needed when assessing the actual impact of what has been written.
Ultimately, it is not possible to control everything that employees do, particularly in their own homes and using their own computers. With the emergence of new technologies and new ways of communicating, employers need to educate their workforce regularly and make them aware of the consequences of posting inappropriate or damaging comments online.
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.