Legal

What does case law say about social media?

23 Oct 2017 By Anjali Raval

Legal expert Anjali Raval offers tips to help HR navigate the murky waters of social media

Employers need to ensure they have an effective social media policy in place to manage how staff use the internet, both in and outside the workplace, where use could have a detrimental impact on the business. They must also clearly set out the potential consequences of breaching the policy.

Recent case law has shown that social media or internet misuse may be misconduct amounting to a potentially fair reason for dismissal. In some circumstances it may even be seen as a repudiatory breach by the employee, constituting grounds for summary dismissal.

Cases in this area have centred on employees' derogatory comments about the workplace; offensive comments unrelated to work but that potentially reflect negatively on the employer where the comments are accessible by other employees, clients or potential clients; cyber-bullying of other staff members; and other online behaviour that could bring the employer into disrepute.

Each case has turned on its own facts, but a tribunal will look at whether an employer's decision to dismiss is within the band of reasonable responses.

In Plant v API Microelectronics Limited, the employment tribunal found that the claimant's dismissal over derogatory comments she made on Facebook had been fair, despite the fact that she was a long-serving employee with an otherwise clean disciplinary record.

Following an announcement about her employer’s potential move of premises, the claimant posted the following on her Facebook account: ‘PMSL [pissing myself laughing] bloody place I need to hurry up and sue them PMSL.’ Her account was linked to her employer's computer system and her profile had listed her employer and job title.

Other employees of the respondent saw the comments and reported them. The claimant was invited to a disciplinary hearing and, having failed to provide an adequate explanation for her post, was dismissed.

The key point in this case is that the respondent had in place a social media policy that clearly set out examples of unacceptable behaviour, reminded employees that comments on social media sites are not ‘private’ and stated that breaches could lead to disciplinary action, including dismissal.

The tribunal noted that, while the dismissal for breach of the social media policy may have seemed ‘harsh’ in the context of the claimant's clean history, it was nevertheless within the range of reasonable responses.

The decision in Plant is helpful for employers looking to dismiss employees for social media misconduct, but it also reinforces the importance of actually having a social media policy in place. It is not difficult to see how the tribunal could have come to a very different conclusion in Plant if the respondent had not had such a policy in place.

Love it or hate it, social media isn't going anywhere. Employers should embrace the opportunities that it can offer but they should also check that they have sufficient protections in place to guard their business and their reputation.

Anjali Raval is an associate in the employment team at law firm Dentons

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