Knowledge

With over half of the world's population actively using many distinct forms of social media, employers are increasingly having to deal with inappropriate online behaviour by employees. Be it an inappropriate Facebook post, a risky snap on Snapchat or an offensive WhatsApp message, both employers and employees should be aware of the potential consequences emanating from inappropriate posts.

Although the Jersey Employment and Discrimination Tribunal has not had to deal with this issue, there have been a number of cases before the UK Employment Tribunal (the "Tribunal") which elaborate how these matters might be dealt with and what lessons can be learnt by employers.

The need for a social media policy
Social media policies help set the parameters of what is and what is not acceptable, providing useful guidance for employees in relation to what is appropriate in the context of their role. It also allows an employer to maintain some control over their brand and image online.

The Tribunal has made a series of remarks regarding the importance of effective social media policies. We start by assessing its decision in Whelan v Blue Triangle Buses Ltd ET/3200787/18, where it was held that where a social media policy exists, and the employer shows a breach, this will amount to gross misconduct. Here, the Claimant was a bus driver for the Respondent, who was contracted to drive buses for TfL. He made a series of offensive posts, such as sharing CCTV footage of a person getting run over by a TfL bus and making comments about getting away with hitting two pedestrians. When asked to take these down by his manager, he refused and was subsequently dismissed for serious misconduct and breaching the social media policy. The Tribunal deemed this a fair dismissal.

Moreover, the Tribunal has stated that when a new social media policy is introduced, all employees are deemed to have read it and must amend their social media profiles accordingly. In Plant v API Microelectronics ET/3401454/16, the Respondent had recently introduced a comprehensive social media policy. The Claimant made some offensive comments about her employer on Facebook and, because of these, was later dismissed. The Tribunal held that she was fairly dismissed.

The Tribunal has also recognised the importance of an employer having control over its brand image by exerting certain control over its employees. In Crisp v Apple Retail (UK) Limited ET/1500258/11, the Tribunal highlighted the importance of abiding by an employer's policies and procedures. The employer gave every employee training on maintaining brand image online, which included instructions not to post anything negative about Apple. A warning was given that breach of this could result in termination. The Claimant later made a series of negative posts concerning Apple on Facebook. Although there was no direct link between his profile and his employment, such as a listed job title, he had 'friended' many of his colleagues. These Facebook friends passed on the comments to his manager and he was dismissed for gross misconduct.

The Tribunal held that dismissal was a fair response, as not only had the employee been given brand and social media training, his conduct had brought the brand's image into disrepute. Moreover, the Tribunal held that an employee does not have a reasonable expectation of privacy on social media, as posts can be easily forwarded on, regardless of privacy settings.

Therefore, as demonstrated, a social media policy will be of use for employers and employees alike.

Activity online must be sufficiently serious to merit dismissal
Although employers may take steps to warn employees about their behaviour online, employees may still post unintended damaging content. An employer must have a number of considerations when considering dismissal in response to an employee's behaviour online.

In order to assess the seriousness of the communication, employers must consider:

• Is the activity directly linked to the employer?
• If not, does the activity bring the employer into disrepute?
• Does the activity merit dismissal?

Should these not be carefully considered, an employer could find themselves liable for unfair dismissal.

Is the activity related to the employer in any way?
This is a question of fact for the Tribunal. In Forbes v LHR Airport UKEAT/0174/18/DA, the Claimant alleged that her employer was liable for another employee who posted a potentially racist image on his private Facebook page. The Employment Appeal Tribunal held that an employer is only concerned where the conduct occurs "in the course of employment". On the facts, the Tribunal did not consider that a reasonable person would not consider the image to have been posted "in the course of employment" as it was posted outside of working hours, the Facebook page was private, did not list any place of work and only had a few colleagues as friends.

In the vast majority of cases, it will be factually clear whether an activity is related to an employer or not. Examples of links that resulted in fair dismissal by the Tribunal include:

Place of work listed on profile

Making inappropriate posts about the role, the employer or other employees

Sending inappropriate messages to other employees

Breaching workplace safety rules

Offensive workplace group chats

If not, does the activity bring the employer into disrepute?
If a post is not directly linked to an employer, it may still have reasonable grounds to dismiss that employee, provided the post brings some disrepute upon the employer.

In Gibbins v British Council ET/2200088/17, the Claimant made a series of derogatory comments about Prince George on a public pro-Republican Facebook post. She was employed in a senior role at the British Council. The Sun newspaper, who ran a series of articles on the employee and her employer, a public body promoting British culture worldwide, noticed her posts. Although the articles misquoted her, she was later dismissed because of her Facebook comments. At Tribunal, it was held that the Claimant had not been dismissed because of her Republican views, but had instead been fairly dismissed as her activity online had brought disrepute upon her employer.

However, where an offensive activity is done outside the "course of employment", as provided in Forbes, employers must undertake a careful analysis as to whether the action brings the employer into disrepute. The Tribunal has erred on the side of caution and often sought to balance the employer's reputation with the employee's right to freedom of speech. In Smith v Trafford Housing Trust [2012] EWHC 3221, a Christian employee made a series of Facebook posts disagreeing with gay marriage. His place of work was listed and he had friended many of his colleagues. These comments were passed onto his manager and he was dismissed. The High Court held that the Claimant had been wrongfully dismissed as he was not using his profile for work-related purposes and he was equally entitled to express his personal views.

Therefore, the best way to determine whether the employer has been brought into disrepute is by conducting a complete and thorough investigation. In Mazur v Crediton Dairy ET/1400995/14 an employee had posted a picture of himself in his work uniform wearing a Bin Laden mask. He was summarily dismissed for gross misconduct and bringing the employer into disrepute. At Tribunal, it was held that he had been unfairly dismissed as there were no reasonable grounds to conclude that his actions had brought the employer into disrepute. The picture had been on Facebook for over seven months before being reported and had a proper investigation taken place, this would have been clear. The Claimant's award was reduced by 60% to reflect his contributory conduct.

A proper investigation will also help determine the context around a post. The Claimant in Mason v Huddersfield Giants [2013] EWHC 2869 was a professional rugby player. Another person had posted an inappropriate image on the Claimant's Twitter feed, which was eventually taken down two days later. The Claimant was later dismissed for failing to delete the Tweet quickly enough. The Claimant was found to be unfairly dismissed and it was held that the delay was not gross misconduct, as he was not the author of the Tweet. The Tribunal also criticised the Respondent, stating that the Claimant's followers would not see it as being inextricably linked to the club.

Does the activity merit dismissal?
Even where the activity has occurred in the course of employment, or has brought the employer into disrepute, in order for activity online to merit dismissal, it must amount to gross misconduct. A social media policy will help set the parameters of what behaviours constitute gross misconduct and which sanctions are appropriate. Regardless, even where a policy is in place, a thorough and adequate investigation will be necessary to assess whether dismissal is an appropriate response.

Factual considerations to have in mind:

1. The activity must be sufficiently serious
   Whether an activity is sufficiently serious will be a factual question. In Trasler v B&Q ET/1200504/12, the Claimant made a few Facebook posts regarding his hatred for his job. These were seen by another employee and sent on to his manager, and the Claimant was dismissed. The Tribunal held this to be an unfair dismissal, as there was no evidence to suggest anyone felt threatened and dismissal was therefore an unreasonable response as the posts were not sufficiently serious.
2. One incident may be sufficient
   The Claimant in Ward v Marston's plc ET/2600869/13, called an area manager, whom he had never met, an offensive expletive on Facebook and was dismissed. As he had a number of colleagues as Facebook friends, they would all know to whom he was referring. This was deemed a fair dismissal as dismissal for one very offensive post is within a reasonable employer's range of reasonable responses. However, as seen in other cases discussed, sometimes a number of posts is considered necessary to warrant a sanction.
3. No timescale
   Depending on the seriousness of the posts, offensive material that later comes to light may be sufficient to warrant dismissal. In British Waterways Board v Smith UKEAT/0004/15, the Tribunal held that it was irrelevant that inappropriate posts made two years earlier were used to dismiss the Employee. They had been made and this is what was important.
4. No expectation of privacy
   Crisp highlighted how employees using social media do not have a reasonable expectation of privacy. Although posts may be intended to be kept private, the Tribunal has stated that these can easily be forwarded on to others. This has been seen in all forms of social media, from Facebook in Gibbons and Whatsapp in Faraz.

Reform
Presently, there are no cases exploring what happens when a former employee makes derogatory comments about a former employer on social media. Although freedom of expression is recognised as a human right, it is imperative that this freedom be balanced with the potential damage to the employer's reputation. One of the options, defamation litigation, is difficult to pursue, and may take years to resolve.

Another option is the inclusion of restrictive covenants in employee contracts. However, the Courts have held that these covenants must be limited in time, thus exposing employers to the same issue. It is arguable that at present, restrictive covenants in employment contracts have not kept up with modern times and emanate from a time before social media. Prior to the internet, restricting an employee from maliciously speaking out against a former employer was disproportionate when compared to the damage likely to be caused. However, given the instantaneous, widespread damage a derogatory post may cause, it seems it may be time to re-evaluate what can be covered by restrictive covenants. Whistle-blower protections would still apply, preserving employee rights to speak out in legitimate situations.

Conclusions
Social media has revolutionised the way we communicate. Employers must ensure they keep up to date as these actions would not have been possible 15 years ago. However, as much as employers wish to protect their brand and reputation, they cannot reach too far into their employees' personal lives. The best way to protect themselves is with a comprehensive social media policy covering all possible aspects relevant to the employer's brand and business.

For all the employment needs of your business, please contact the Bedell Cristin Employment team