The use of social media in the workplace has become more and
more prevalent, and inevitably there have been an increasing number
of employment tribunal cases dealing with related issues. The
recent unreported employment tribunal case of Crisp v Apple Retail
demonstrates the importance of an employer giving careful
consideration to how it will respond to the risks associated with
the use of social media, in particular the importance of a strong
social media policy.
Mr Crisp, who worked at an Apple store, posted derogatory comments
on his Facebook page about his work and certain Apple products. One
of Mr Crisp's colleagues brought a number of these posts to the
attention of Mr Crisp's store leader. As a result Mr
Crisp was suspended from his role and following a disciplinary
process was dismissed for gross misconduct. Mr Crisp appealed
this decision, but the original decision to dismiss was
upheld. He then brought a claim of unfair dismissal. As
part of its consideration the employment tribunal considered the
fairness of the dismissal as well as whether Mr Crisp's human
rights had been breached, in particular his right to respect for
private and family life and the right to freedom of
expression.
The employment tribunal concluded that Mr Crisp's dismissal was
fair, and that there had been no breach of his human rights.
In relation to the fairness of the dismissal the employment
tribunal made particular reference to the training and policies on
the use of social media provided to Mr Crisp by his employer, and
the fact that employees were encouraged to ask if there was any
doubt about their behaviour. The tribunal also concluded that there
was no reasonable expectation of privacy over the Facebook posts
because although Mr Crisp's Facebook page was
'private', due to the nature of Facebook and the internet
generally, posts by one person can very easily be forwarded on to
others. As an Apple employee working with technology he should have
been aware of this. As to the freedom of expression the tribunal
found that this was engaged, but Apple's conduct in limiting
this right to protect its reputation was one of the justifications
permitted by Article 9 of the Human Rights Act 1998.
This case is a typical example of the issues on social media which
are increasingly relevant to employers. The rapid advancement in
social media technology and the accompanying dramatic surge in its
use have exposed businesses to new opportunities for customer and
colleague engagement. However, as this case demonstrates,
employees' use of Facebook, LinkedIn and other social media
sites can also expose employers to risks, including reputational
damage, confidentiality breaches and loss of control over
information. Bullying, harassment and discrimination can
occur easily online. Defamation and negligent misstatement can
create liability to third parties; privacy and data protection
principles need to be considered and respected. How an
employer prepares for and responds to these risks is crucial in
determining how well it can protect its business from them.
The employment team at CMS Cameron McKenna has created a flyer to
help employers understand the issues relating to the use of social
media. Please click here to access our flyer. The team has extensive experience
of creating tailored social media policies for employers and
advising on how to avoid or respond to the risks associated with
the use of social media.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 15/12/2011.