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Even when employers are clear about their social media policy, employees can still find themselves sacked for using social media risking inappropriately.
As reported in our recent blog, ‘Social Media in the Workplace’, clear communication about what is – and isn’t – acceptable is vital. Even then, employees get it wrong. So what happens next?
Fair dismissal for inappropriate use of social media
Employment tribunals have shown a willingness to rule that dismissals are fair providing a clear policy on social media is available and the dismissal is a reasonable response to the infringement.
Crisp v Apple Retail (UK) Limited (unreported ET/1500258/2011) demonstrates many of the important consideration which employment tribunals make when deciding on whether a dismissal for use of social media is unfair.
In Crisp, the tribunal ruled that an employee was fairly dismissed after he had posted negative comments about his employer on his private Facebook page. The tribunal heard that Apple has a clear policy on social media, which prohibits employees from making comments or acting in any way, which might damage their brand. Employees are given training to the effect that they must be mindful of the way they present themselves in public, including online, and that comments made outside of work which affect the company image are still covered by company policy. The tribunal found that dismissal was within the range of reasonable responses to Mr Crisp’s negative comments online.
Privacy and human rights
One of the central arguments brought by the claimant in Crisp, and in other similar cases such as Preece v JD Wetherspoons PLC (unreported ET/2104806/10), is that comments posted online are ‘private’. Social media sites allow users to restrict access to their content in such a way that only certain specified users may freely view that content.
Section 6 of the Human Rights Act 1998 obliges public bodies (in this case employment tribunals) to act in accordance with the provisions of human rights law. In cases such as these a key consideration is whether dismissal infringes an employee’s right to privacy under the ECHR, Article 8.
Mr Crisp argued that his comments were posted only to his friends, and further produced examples of derogatory comments from other employees’ private pages which had not resulted in dismissal. His argument being that dismissal was therefore clearly unfair. However this reasonably constructed argument was in essence his undoing. In producing examples from other employees’ private pages, he neatly demonstrated that when a comment is posted online, even privately, it is almost impossible to control where that information ends up.
Freedom of expression
Employment Tribunals also consider whether a dismissal infringes an employees’ right to freedom of expression. We fear living in a totalitarian state, and for some employees a highly restrictive social media policy may serve to generate that impression.
The right to freedom of expression under the ECHR, Article 9 is subject to limitations, most notably in this case in the ‘protection of the reputation or rights of others’. In Crisp case, the tribunal ruled that Apple could fairly limit Mr Crisp’s right to express himself freely where that expression was damaging or potentially damaging to its reputation as a business.
“Employers must be careful,” explains Matthew of Consensus HR. “The case law in this area contains many examples of employers acting unfairly in dismissing an employee for a comment made online.”
He adds: “As well as rigorously following appropriate disciplinary procedures, the case law shows that dismissal must be a reasonable response in the circumstances of each case.”
Every business must rely on swift and up-to-date legal advice to ensure that their disciplinary actions are within the law. To find out more, contact Matthew of Consensus HR via email@example.com or call 01462 621 423.