Social Media:  Be careful what you say, do and upload, on Facebook and Twitter

UNISON are concerned that the rise in the use of “social media” such as Facebook, Twitter, LinkedIn, YouTube, etc., and these being readily available on computers, tablets, smartphones,   has lead to a rise in disciplinary issues and tensions.  The time spent on social media during working hours aside,  problems arise when one colleague “de-friends” another, or comments are made that others may find offensive, insulting, bullying, or disrespectful (rather than humorous), or when derogatory comments are made about a manager or the institution.  This can lead to disciplinary action ranging from a warning right up to dismissal, if the conduct is serious enough to undermine the employment relationship beyond repair.

Employers may dismiss employees “fairly” for conduct outside work, but only if the conduct is in some way related to work, usually by damaging the employer’s reputation.  For the dismissal to be fair, there must be evidence of a genuine risk of reputational damage.  A good example of dismissal for conduct outside work is the spate of recent dismissals for criticising the employer using social media, such as Facebook and Twitter.

Currently the University does not have a separate social media policy, but they can invoke their current disciplinary policies and procedures. There have been instances of staff making negative comments about co-workers and managers, or about university processes.  staff claiming to be off work due to sickness – posting status update and images of their exploits on social media (yes people can be that foolish).  Either employees hope their posts, tweets, videos and status updates will never come to light or they do not care if they do.

Social Media – two Case Studies:

  1. Employers can use evidence found on social media sites as evidence of misconduct, as in the case of Gill v SAS Ground Services Ltd (ET/2705021/09), where an employee on long-term sick leave (for which she was being paid in full) was held to have been fairly dismissed when the company became aware of her Facebook updates describing her choreographing and auditioning activities at London Fashion Week. Her behaviour was clearly dishonest as she was supposed to be unfit for work as a Customer Services Representative for the company. It followed a fair procedure and her dismissal was held by an Employment Tribunal to be fair.
  2. An employee with a clean disciplinary record, off sick with stress, put up a Facebook page entitled “Halfords workers against working three out of four weekends”, because he wanted to encourage colleagues to object to shift changes the company was consulting over. Then he read his employer’s social networking policy which warned that negative public statements about Halfords could result in disciplinary action, so he took down the page. But his employer had already seen it and he was disciplined and dismissed for gross misconduct. On this occasion, the Employment Tribunal found the dismissal unfair and outside the range of reasonable responses of an employer (Stephens v Halfords PLC (ET/1700796/10) unreported).

The key factor in any disciplinary situation is for the employer to have acted fairly and “within the range of reasonable responses”. The lesson for any employer faced with a derogatory comment on a social media platform is to consider what damage the comment has made and to treat the situation in the same way as misconduct in the real world would be treated.  If no discernible damage is apparent and the employee is contrite, dismissal may be one step too far.  Some good advice for employees is:  do not post comments on social media sites in the expectation that the comments are private: there’s no privacy in social media, the clue is in the word “social”.

Remember too, that some employers will “cybervet” prospective employees and google you. On social media you reveal a range of information they would not otherwise have access to.