What action can a practice take if an employee posts a derogatory statement about the practice on Facebook or Twitter? Would a resulting dismissal be fair or would it leave the practice liable for a claim in an Employment Tribunal?
Social media, such as Facebook, YouTube and Twitter, has developed at a phenomenal rate in recent years. This has created problems for employers as it has blurred the boundaries between the professional and personal lives of employees. A careful balance needs to be struck between, on the one hand, protecting the employee’s right to freedom of expression and on the other, of protecting the employer’s reputation. This balance is by no means easily achieved.
We are increasingly seeing Employment Tribunal cases involving employees who have posted inappropriate remarks about their employers, customers or colleagues on Facebook. One such case, Preece v JD Wetherspoons Plc, involved derogatory comments made by a Wetherspoons employee about customers. In this case the employee mistakenly believed that her Facebook account settings were private, but this provided her with no defence in the Employment Tribunal. Wetherspoons had a robust social media policy dealing with Facebook use upon which it relied and so were able to dismiss the employee for gross misconduct.
Simply having a social media policy is not enough to protect your practice against potential unfair dismissal claims. This was found in the case of Stephens v Halfords, in which the employer had a social media policy but failed to communicate the policy effectively to the employee. In this case an employee had set up a Facebook group in protest at the employer’s new policy regarding working hours. Although this was against the employer’s social media policy, the Employment Tribunal found that the employee had been unfairly dismissed as the employee was not aware of the social media policy.
It is worth remembering that if dismissal is an option, then that decision must still be a reasonable one. This was seen in Witham v Club 24 where an employee commented: “I think I work in a nursery and I do not mean working with plants” on her Facebook page. This was a reference to the perceived behaviour of her colleagues while on secondment. The employee was dismissed because of concerns that the comments damaged the Company’s reputation with its clients. This was challenged in an Employment Tribunal which found the subsequent dismissal unfair. In this case no evidence was presented to show that the employer’s reputation had been damaged, the employee had no previous disciplinary record and had ten years’ service.
Formulating a policy
Practices should adopt a social media policy which outlines the boundaries of acceptable use. Although in most work places a blanket ban on social media use may be unreasonable, in practices, particularly in relation to any interactions with patients, a more stringent policy is likely to be justifiable. The policy must set out clearly what action will be taken if an employee breaches the policy. You should cross-refer the social media policy to your other policies, for example your disciplinary procedure. Don’t forget to update your disciplinary procedure to ensure that the categories of gross misconduct cover a serious breach of your social media policy.
As highlighted in the case law above, simply having a policy is not enough. To be able to enforce it you will need to ensure that each member of staff is aware of the policy and its consequences. While the policy will be non-contractual, staff will be expected to adhere to its terms so ensure proper consultation takes place at the outset. This could be at a staff meeting so that any questions can be answered. This avoids any suggestion that employees were not aware of the policy and that subsequent disciplinary action is unfair.
A reputation can take years to build but moments to destroy. While case law is still emerging, it is clear that all practices should have a social media policy to protect their reputation. This must be clear and properly implemented. Whether or not a practice can dismiss for gross misconduct for inappropriate comments made on Facebook will depend on the facts in each particular case but implementing a robust social media policy will certainly be a step in the right direction.
Victoria Patterson is an employment solicitor at specialist primary healthcare law firm Veale Wasbrough Vizards.