A recent tribunal appeal case demonstrates the need for employers to have a clear computer policy which includes reference to responsible social media use both for work and/or personal purposes. Our HR Consultants can assist you in formulating this should you wish to have this included in your Employee Handbook or indeed as a separate policy.
In December 2014 the Employment Appeal Tribunal (EAT) considered a case concerning a claim for unfair dismissal of a Manager by Game Retail Ltd for misuse of his personal Twitter account. He had originally set this up for personal use and only used it in his free time but then used it for limited work contact in his role as Risk and Loss Prevention Investigator. He followed 100 stores to monitor inappropriate use and 65 stores followed him.
The Company then received a concern from one of his colleagues that he had posted inappropriate tweets concerning supporters of Newcastle football club, dentists, A & E workers and “t****” in caravans. He was dismissed for gross misconduct as a result of these tweets which his employer considered to be offensive, threatening and obscene and liable to be seen by anyone on Twitter.
The employee won his claim for unfair dismissal at the Employment Tribunal (ET) but later lost when his employer appealed this decision at the Employment Appeal Tribunal (EAT).
At the ET stage the panel considered that he had not registered on Twitter as part of his job, his tweets all concerned matters unrelated to work and were made in his free time and there had only been 1 concern raised by a colleague. It was not established that any member of the public or other colleagues had been offended therefore this was only a theoretical risk and not a real risk.
The Judge noted that none of his tweets mentioned where he worked or referred to his work. In addition, his employer had no policy in place at the time of his dismissal which referred to the misuse of social media in personal time. His dismissal was found to be unfair.
However the Judge at the EAT upheld the employer’s appeal saying that the ET had not paid enough attention to the public nature of Twitter and that there had been no attempt made by the employee to use his privacy settings to restrict public access to his tweets. Therefore they were publicly visible by default, including beyond his followers.
His original intention to use his Twitter account for personal use had to be balanced against the reality that he was following 100 stores and 65 stores were following him, therefore his tweets were not personal but available to them and the employer had, as a result of this, received a concern from one of his colleagues. He did not choose to set up 2 Twitter accounts, 1 for personal and 1 for work use.
The matter was referred back to be considered afresh by another ET.
At the EAT both parties asked the Judge to provide guidance for these situations but this was declined as each case will turn on the merits of that particular case. Matters that were considered were: Did the employer have a policy that covered this or not? The nature and seriousness of the misuse. Whether there had been any previous warnings or not and was there any actual or potential damage to customer relations?
The valuable lessons for employers to take away from this case are:
- Have a clear computer policy which includes the use of social media both in work and personal time. This policy should make it known that if what an employee tweets in their personal time impacts on the employer and its reputation, this could lead to disciplinary action up to and including dismissal
- Provide appropriate induction training to ensure that employees understand the consequences of social media misuse and potential damage to their employer’s reputation. Perhaps achieving employee sign-off that this training has taken place which is filed in their personnel file
- Encourage employees to use their privacy settings
- When investigating misuse, take action to secure evidence quickly and consider complaints received and whether damage is real or potential
- Be clear on the audience that the post was available to and what connection there has or hasn’t been to the employer
- Bear in mind that employees do have the right to freedom of expression as long as this does not interfere with business or other people’s welfare
- Consider whether informal action such as asking the employee to remove the post immediately is sufficient or not
Please don’t hesitate to contact your Alcumus consultant if you would like to discuss this case further or need help in considering what to include in a suitable policy.
Joanna Dobie, Senior HR Consultant, Alcumus