September 28, 2016
Sacked for social media use – employee conduct and how to deal with it
ITV acted quickly to respond to the situation – which escalated after Anwar posted racially offensive comments about Indian people on Twitter – with a spokeswoman saying:
“We are deeply shocked by the entirely unacceptable, racially offensive comments made on Twitter by Marc Anwar. We have talked to Marc and, as a consequence of his comments, he will not be returning to Coronation Street, with immediate effect.”
While this is a particularly high-profile example, employers are frequently faced with dealing with conduct on social media by their employees which is offensive, inappropriate, harasses colleagues, or damages the business.
And employers have to take account of this conduct even if it takes place outside of work.
So how do employers ensure they’re effectively managing the conduct of staff on social media?
The first consideration an employer should make is whether the conduct affects the employee doing their work.
If comments on social media can be linked to the employer, then the conduct can amount to bringing the business into disrepute – leading to disciplinary action by the employer.
Recent cases have seen national brands like Virgin Atlantic dismiss members of their cabin crew for describing customers as ‘chavs‘, and a manager at a Wetherspoons making rude and offensive comments about customers on Facebook.
Online bullying and harassment – employer responsibilities
The test for whether the conduct affects the employee doing their work includes how the conduct impacts on other colleagues, and whether that conduct could be considered harassment.
This is important as employers are vicariously liable for acts of bullying and harassment by their employees in the course of their employment.
A broad approach is generally taken by Employment Tribunals when determining whether social media comments are made ‘in the course of their employment‘.
Therefore, if bullying comments are made on social media sites regarding other employees it is advisable that the employer take action against the employee making the comments to protect the employee being bullied.
Crucially, a failure to take appropriate action could lead the employer to become liable for harassment or bullying of the employee.
If the harassment is discriminatory in nature then the employer may be liable for any claim in the Employment Tribunal if they have not put reasonable steps in place to prevent the harassment or taken the appropriate action once bullying has been identified.
Protecting your business from employee (mis)conduct
To protect itself an employer must have have an effective Social Media Policy, which clearly sets out that bullying, harassment and discrimination through social media are serious disciplinary matters and prohibited.
Consideration also has to be made of the European Convention on Human Rights, specifically the right to privacy and freedom of expression.
Most employees would argue they have the right to express their views and opinions about their employer or colleagues provided they do so in private on Facebook and Twitter etc., and whilst this is correct as a starting point, in practice the courts have taken the view that comments on social media are in the public domain and therefore not private.
Interfering with an employee’s freedom of expression is permissible if it can be justified.
For employers this justification will be the fact the comments are connected with the employees work or impact on the employer and/or colleagues.
Therefore courts tend to favour the employer’s rights over the employee’s human rights in these circumstances.
- It is essential employers have an effective Social Media Policy and communicate it to all employees.
- If bullying or harassment is taking place using social media and is targeted at other employees, then the Employer is obliged to take the appropriate disciplinary action or risk being liable for the harassment.
- Employers can also take disciplinary action against employees who make negative or disparaging comments on social media about the business or their clients.
If you would like help reviewing or writing your Social Media Policy, or need any specific advice on how to enforce it, please contact the team or call 0844 391 1921.