With social media an ever-present in modern life, what can employers do when a member of staff goes too far online? Legal expert James Hall explains
As social media becomes ever-more embedded into our day-to-day lives, companies are struggling to keep up with the dramatic changes that it continues to bring to the workplace.
So, what can an employer do when they consider an employee has gone too far?
A recent case involving a Wetherspoon's pub manager dismissed for her Facebook entries has given useful insight into what can be done in such circumstances. The good news is that employers have a significant amount of leeway to assess the most appropriate outcome.
The pub manager in question, Ms Preece, had been subjected to a "shocking torrent of verbal abuse" and physical threats by a crowd of unruly customers. Two regulars known as "Brian and Sandra" were key players and, having been threatened with a cane, Ms Preece ejected them from the premises.
Later that evening, a woman believed to be Brian and Sandra's daughter made repeated abusive phone calls, demanding to speak with Ms Preece and calling her a slag, telling her to get her P45 ready and other, less-repeatable phrases. It was acknowledged by her employer and the tribunal that up to this point, Ms Preece had dealt with the situation very professionally.
However, after receiving the calls and while still at work, Ms Preece entered into an offensive Facebook exchange with other off-duty colleagues about the events of that evening, at one point naming Brian and Sandra. Shortly afterwards, Brian and Sandra's daughter made a complaint about these comments to Wetherspoon's, who subsequently dismissed Ms Preece for gross misconduct.
The tribunal found that the dismissal was fair on the grounds that, while she had a right to freedom of expression, Ms Preece's public statements had damaged the company's reputation. Significantly, Wetherspoon's has a policy stating that employees should not contribute to a blog where the content lowers the reputation of the company.
Even though Ms Preece thought only 50 to 60 people could see her comments, the tribunal still considered them to have been made public. Further, there had been a thorough disciplinary process and, although the tribunal said that it would have been minded to issue a final written warning, dismissal was within the range of reasonable responses.
A thorough policy should go into some detail as to the potential pitfalls of electronic communications, whether work or personal. It would also be useful to have, as Wetherspoon's do, a section dealing specifically with blogging, social media and how public comments may impact on the company. Clear guidance as to the possible consequences of a breach will also make the employer's decision far easier to justify before the tribunal.
â- Ensure that you have clear policies on electronic information and communications and that these specifically cover the full range of social media and blogging, both in and out of work.
â- Clearly set out the possible consequences for any employee who is found to have damaged the company's reputation.
â- Ensure that all staff involved in the disciplinary process are trained in how to come to a reasoned and balanced decision.
Social media is a rapidly changing area of modern-day life and it is difficult to accurately predict what challenges may arise in the future, legal and otherwise. To allow for this, avoid making any policies overly specific, but at the same time ensure that their intention is clear.
Keep up to date with any legal developments in this area, in particular those emanating from the tribunal system and be prepared to adapt quickly to any new approaches.