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With 72% of all internet users actively using some form of social media, many companies recognise the advantage of using social media for both marketing and recruitment purposes. However, its misuse can have damaging effects on a company’s reputation and corporate image. But to what extent can an employer discipline an employee for causing such damage when use of social media is arguably an aspect of an employee’s private life, which the employer has no right to control?

Due to the relatively recent emergence of social media, there are limited cases which deal with this issue. However, when employers consider what action to take against their employee’s conduct on social media, they should consider the following:

Is the conduct likely to cause damage to the company’s reputation or business relationships?

What an employee chooses to do own their personal social media account should not be of any concern to their employer unless it is likely to bring the company into disrepute. If there is no likely threat to the company’s reputation, a dismissal of the employee on those grounds may be deemed unfair. In Game Retail Ltd v Laws (2014), an employee had posted several offensive tweets from his personal Twitter account, none of which were related to his employment at Game. However, the Employment Appeal Tribunal (“EAT”) found that the dismissal was fair on the basis that the employee’s Twitter account was followed by 65 of his employer’s stores, therefore increasing the likelihood of other staff and customers reading them.

In contrast, Mason v Huddersfield Giants Ltd (2013) involved a claim for wrongful, rather than unfair, dismissal of a rugby player after he was dismissed in breach of contract for delaying to delete an offensive tweet made by someone else using his personal Twitter account. The High Court was not convinced that the tweet “could be seen as being inextricably linked to the club” and that it was unlikely for anyone to assume that the tweet was condoned by the club, despite the majority of the player’s Twitter followers being fans of the club and his Twitter biography describing him as playing for the club.

Are there any mitigating circumstances that would make the dismissal unreasonable?

Depending on the circumstance of each case, employers should also take into account any mitigating factors that might exclude dismissal from falling into the ‘range of reasonable responses’ when disciplining the employee. In Taylor v Somerfield Stores Ltd (2007), a manager was dismissed for posting a video on YouTube of an employee in uniform being bashed over the head with plastic bags in a storeroom. However, the video only received 8 hits and was taken down by the manager after three days, who later apologised for posting the video. The tribunal held that not only was there not enough evidence to suggest the video was damaging to the employer’s reputation, but the employer had failed to take into account the manager’s admission of guilt, apology and clean record. 

What policies does the company already have in place as to misconduct and social media use?

An employer’s existing policy regarding social media use can help to determine whether the conduct of an employee is enough to amount to misconduct or gross misconduct necessary for dismissal. In Crisp v Apple Retail (UK) Ltd (2011), the employer had stressed the importance of “protecting the company’s image” during their training course for new employees, which included using social media appropriately. Their email communications policy also stated that the inappropriate use of social media was likely to constitute gross misconduct.  The claimant made derogatory comments on his Facebook page regarding his employer and its products. Whilst his Facebook page was “private” in that access was restricted to friends, the Tribunal found that it was not truly private as comments and posts are easily capable of being transmitted to third parties.  It was also relevant in this case that the employer had been consistent in applying its policy on inappropriate use of social media to other employees.

Whilst the cases above may provide some guidance as to how employers manage the misuse of social media by their employees, employers must recognise that each individual case is different and therefore should be dealt with in light of all circumstances surrounding it.  

For further information on the issues raised in this article, please contact Helen Wyatt on 020 7925 8083 or by email at helen@spencer-wyatt.com.

+44 (0)20 7925 8080 info@spencer-wyatt.com