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Social Media: Blurring the lines between public and private

Thu 19 Jun 2014

This article first appeared in Employment Law Journal in June 2014.

We like to think our working and private lives are separate. A work/life balance is a work/life separation.

That separation used to be simple. After a hard day at work, with your boss on your back and the client a nightmare, you and your mates would set the world to rights over a few drinks. You called your boss every name under the sun, and the client too. You talked religion and politics. Next morning, with a nasty hangover, you went back to work, no harm done. You didn’t really hate your boss and the client wasn’t so bad.

Then came the Internet and social media. We love social media – over 50% of the adult UK population has a Facebook account – and it has in many ways changed the way we communicate socially.

The pub is now old hat. These days, you get home, pour a large glass of Pinot Grigio and go online. Your mates are on Facebook and you chat as if you are in the pub.

That’s fine, isn’t it? Facebook and Twitter are surely private. In our work/life separation, our personal social media accounts are on the private side of the equation. We can say what you like. Can’t we?

Background

Use of social media platforms is widespread in the UK, with just over 31 million users of Facebook (reported at the end of December 2013) and 15 million users of Twitter (reported in September 2013). Other platforms such as Linkedin, Snapchat and audioboo are also becoming increasingly popular.

But employees can be fairly dismissed for comments they make on a social networking site, even if they access the site on their own personal computer or smartphone, outside working hours, and their profile page does not state where they work. The only real test is whether the conduct relates to their employment relationship with their employer.

There has been a series of employment tribunal decisions over the past few years dealing with social media and employees, particularly as a result of employees acting in a way which could bring their employer into disrepute, or which could damage its reputation. The Tribunal commented in Walters v Asda Stores Ltd [2008]:

The powerful medium of the internet poses challenges for employers and employees. It is a means of communication where the boundaries of what is acceptable are not always clear.

It is precisely because of this uncertainty and false sense of security (or privacy) that legal advisers should ensure employers have an effective social media policy. This needs to set out clearly, with examples, what behaviour outside work they consider is and is not acceptable, to ensure their reputation is protected.

Have a policy

The importance of having a policy is illustrated by Whitham v Club 24 t/a Ventura [2011]. In this case, the employee was a team leader for Skoda customer services (part of the Volkswagen group) and posted a comment on her Facebook page stating:

I think I work in a nursery and I do not mean working with plants.

There followed a conversation with friends over Facebook and two of the employee’s colleagues (who were her friends on Facebook) reported the conversation to management.

The employer was concerned about the detrimental impact of the employee’s comments on its relationship with Volkswagen. However, it could not identify a breach of the relevant sections of any social media or disciplinary policy and, instead, alleged that the conduct constituted a serious breach of confidence. To support this, it relied on a provision in the staff handbook which stated that employees must not disclose confidential information to third parties.

However, the tribunal found that there was no breach of confidence and the employer was enforcing the wrong category of misconduct. If the employer had had an effective social media policy, the case might have ended very differently.  

Bring the policy to employees’ attention

An argument often raised by employees is that they were not aware or made aware of the contents of a policy. Employees should therefore be asked to sign the social media policy, confirming that they have fully read and understood it. Employers should also be advised to hold induction training where they draw their policies to employees’ attention. Employees cannot then run the defence that they did not know, or were never told, about the policy.

In Crisp v Apple Retail (UK) Ltd [2011], the tribunal upheld a dismissal as fair. It accepted that the employee’s negative comments on social media about his work and Apple products was a:

...very serious issue for the Respondent, in light of the great importance of image to the company, and so they were entitled to treat this as a gross misconduct issue.

This followed evidence that Apple gave intensive induction training to new recruits on protecting the company’s image. The training explained that employees should be mindful about how they present themselves and the company in public, including in online social networks and blogs.

It’s my right

If an employee is disciplined or dismissed for comments made through social media, they may argue that this is in breach of Article 8 (the right to privacy) and Article 10 (the right to freedom of expression) of the European Convention of Human Rights. Unless the employer is a public authority, these rights cannot be directly enforced. However, under s3 of the Human Rights Act 1998, tribunals must, so far as it is possible, read and give effect to UK legislation in a way which is compatible with the rights laid down in the European Convention.

In determining whether a dismissal is fair under s98 of the Employment Rights Act 1996, tribunals have to interpret the section in a manner that is consistent with Convention rights.

In a number of social media cases, the right to privacy has not been triggered, even where:

  • the comments have been made outside working hours;
  • the employee’s profile page does not mention the employer; and
  • the employee has set the privacy settings so that only their friends have access to their page.

In Crisp, the tribunal considered the right to respect for private and family life under Article 8. It noted that although the employee’s Facebook page was ‘private’, the nature of the site and the Internet generally is that a person’s comments can very easily be forwarded onto others. The employee therefore had no control over how his comments might be copied and passed on. The tribunal found that he had no reasonable expectation that information on social media would be private, so the right to privacy was not triggered.

Employers would be well advised to warn employees to treat comments made on social media sites as public rather than private. Employers may also want to state that employees should include no mention of the organisation’s name or anything associated with it, for example its logo, on their profile page or in any comments.

Set out appropriate grievance procedures

A shift manager’s dismissal for gross misconduct was found to be fair after she made inappropriate comments about customers on her Facebook page at work (Preece v JD Wetherspoons Plc [2011]). The employee argued in mitigation that she was angry and had been upset by abusive customers. The tribunal, however, said the employer had provided a hotline for employees to seek the advice of an experienced manager if they felt distressed, and it was open to the employee to make use of this.   

Employers may wish to stress that, if employees have any issues at work, they must raise them through a grievance procedure or other forums, such as an employee helpline, and that ranting on social media is not acceptable.

Give examples

It is often difficult to draw the line between acceptable and unacceptable conduct. In Walters, Asda’s very detailed policy set out examples of misconduct, such as an employee writing on a social network site: ‘Working at ASDA is rubbish’, ‘ASDA customers are morons’ or ‘Why are customers such w~~~~?’. The Asda employee allegedly posted on Facebook (although she argued her account had been hacked):

I work at [J1] a csm in Sutton ASDA all though I started off in sunny skelmersdale on the rotisserie and even though i’m supposed to love our customers hitting them in the back of the head with a pic axe would make me feel far more happier heheh [sic].

The tribunal found that the employee’s dismissal for gross misconduct was unfair. It took into account that she had been employed for 10 years, had an exemplary record and her comment fell within the examples of misconduct outlined in Asda’s policy (as opposed to gross misconduct).

Monitoring of the internet

The comment in Walters was drawn to Asda’s attention by an external organisation that monitors internet comments about the company. Asda’s policy specifically informed employees that this happened. If an employer carries out monitoring of the internet, it should inform employees to reduce the risk of them arguing that such monitoring is in breach of the duties of trust and confidence owed to them.

Anonymous blogging

Employers may take the view that all blogs (including anonymous blogs) should be prohibited, unless they are monitored and entirely work related. If this is the case, they should be advised to set this out clearly in the policy.

If internet monitoring takes place, employers should also be advised to warn employees that Google listings may link anonymous blogs or Twitter accounts back to them if they have used their own email address in setting up that blog or account. If they can be identified and if the social media entries or blog posts are disparaging or detrimental to the employer’s business, this may lead to disciplinary action.

Bullying and harassment

An employer is vicariously liable for the acts of its employees that occur in the course of their employment. This means that it may be liable for bullying and harassment that occur on social media sites.

In Teggart v TeleTech UK Ltd [2012], an employee was not even aware of extremely offensive posts made about her by a work colleague (as they were not Facebook friends) until she was shown them. Legal advisers should recommend the employer makes it explicit that disparaging or inappropriate comments about another employee on social media will amount to a breach of the policy, even if the victim is not aware of the post.

A number of the social media cases arose because a colleague reported an offending post to the employer. Employees should be reminded that colleagues who report offending posts must not be bullied or harassed. In Weeks v Everything Everywhere Ltd [2012], an employee put up threatening and intimidating posts about a work colleague who had reported to management his comments referring to his place of work as ‘Dante’s Inferno’. The tribunal found that the threatening post was, of itself, sufficient to justify his dismissal.

Religious and political views

One of the most difficult areas to monitor and regulate is employees expressing religious or political views, or joining groups, which the employer feels could harm its reputation or relationships with clients.

This is highlighted by Smith v Trafford Housing Trust [2012]. In this case, a Christian employee read a news article on a BBC news website headed: ‘Gay church “marriages” set to get the go ahead’. Thinking the article might interest some of his Christian friends, he posted a link on his Facebook wall together with the comment: ‘an equality too far’. Following comments from others, he posted:

I don’t understand why people who have no faith and don’t believe in Christ would want to get hitched in church the bible is quite specific that marriage is for men and women if the state wants to offer civil marriage to same sex then that is up to the state; but the state shouldn’t impose it’s [sic] rules on places of faith and conscience.

The housing trust maintained that the comments were in breach of its code of conduct for employees and demoted the claimant for gross misconduct. One part of the code of conduct relied on by the trust stated:

The Trust is a non-political, non-denominational organisation and employees should not attempt to promote their political or religious views. Employees are expected to respect the customs and culture of any customers, their friends and family and colleagues.

The High Court, in a cautious judgment, found the prohibition on promoting political or religious views lay very much at the work-related end of the spectrum, because otherwise it could interfere with the employee’s right of freedom of expression and religious and political beliefs. It determined that the employee’s Facebook page was not sufficiently work related to attract the prohibition against promoting political or religious beliefs. This was the case even though 45 of his work colleagues were Facebook friends and he had identified himself as a manager of the trust.

The court said the employee’s Facebook page was inherently non work related, as it was used to express his personal views about matters which had nothing to do with work. It concluded that the prohibition on promoting political and religious views did not, as a matter of interpretation and application, extend to his Facebook wall.

Employers should be advised to give careful thought in any social media policy to how they differentiate between an employee’s personal views that other employees, clients and the business may disagree with and those which are genuinely detrimental to the organisation’s reputation.

Summary

These cases show that social media use requires proper policing. Employees need to be fully aware of what conduct their employer considers is and is not acceptable.

This is best achieved through a social media policy that is clear and explicit, gives examples to cover all the above situations and is actively brought to employees’ attention. Induction training may be helpful, and internet monitoring should be made known. Employers will also have to ensure that they apply any policy consistently, and that the sanctions they impose for any breaches are proportionate.

Right, back to Twitter…

 

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