Make sure you have a strict staff policy on the use of social media

An industrial tribunal ruling has handed employers the right to dismiss staff who post offensive comments on social media. Stephen Robinson explains

The Problem
Lots of my staff use social media sites such as Facebook and Twitter and I'm worried about the implications of this for my business. I'm uncomfortable with them mentioning the business and concerned that online bickering and sarcasm could become an HR issue for me.

The Law
The best way to manage social media in the workplace is to put in place a sensible social media policy. Simply blocking the sites is not effective because of the advent of smartphones.

A policy should make employees aware that they are responsible for what they post and will face disciplinary action if they bring the business into disrepute. In general terms, they should be asked to make it clear that any views they post are personal and do not represent the business. They also need to accept that the sites are "public" and not "private", regardless of their privacy settings.

Previously this scenario was a tempestuous one. Many employers were apprehensive about taking action against an employee posting such comments for fear of being accused of unfair dismissal.

But following a ruling by an industrial tribunal in Northern Ireland, it appears employers have now won the right to dismiss workers for gross misconduct if they post defamatory comments about colleagues on social media networks such as Facebook and Twitter.

The case involved an employee at a telecommunications company posting insulting comments about a colleague on their social media pages. The person about whom the comments were written about was upset with the situation. The worker was subsequently sacked and sued the company for unfair dismissal.

The tribunal found that his dismissal was fair. They held that his human rights were not infringed and that he had no right to privacy in respect to comments on Facebook, which can be copied and forwarded.

This case is the latest to highlight that social networks can be regarded as public forums, irrespective of the users' privacy settings as the comments could be shared with others. As the case was decided in Northern Ireland, it means it is not binding on other tribunals in England and Wales despite the unfair dismissal laws being the same. It is nonetheless regarded as a guide to how tribunals think about the relationship between social media and the workplace.

It is a very good steer that employers can now have more confidence in dismissing an employee for posting offensive comments on social media - even if those comments are made away from the office, in their own time and on their own computer.

A user may have their privacy settings protected as private but there is no privacy where comments can be copied and posted to others. A workplace ban on accessing social media sites does not remove the risk of this scenario as many people are able to access the sites via smartphones.

Expert Advice
Employees should be warned not to post comments on a social media platform that they wouldn't feel comfortable posting on an office notice board. A thorough social media policy for the workplace is a must and should state explicitly that any employees making comments which could be deemed defamatory may face disciplinary action, regardless of whether the comments are made in work or personal time.

Checklist
As an employer, make sure you have a clear social media policy and warn employees that posting offensive comments may result in disciplinary action.

Employees must be made aware that even if comments were made via their own network or smartphone, they are still at risk of disciplinary action.

If an investigation into the offence takes place, ensure it is thorough and well-documented.

Beware

Even though this particular case scenario is becoming more common, there are no hard and fast rules as to the legal implications surrounding comments posted by employees on social media sites.

Contact
Stephen Robinson is a partner at Laytons Solicitors
stephen.robinson@laytons.com