Knowledge

The evolution of technology and social media means that we live in an era where our thoughts and their implications are just a fingertip away from reaching any number of the currently 4.9 billion social media users worldwide.

Some employees take to social media to exercise their rights to freedom of expression and speech. Complications may arise when the exercise of these rights amount to breaches of a workplace Social Media and Internet Usage Policy ("Social Media Policy"). Can you put yourself in the firing line for a social media post made in your own time and from a personal profile?

In the recently reported case of C Smith v Turnock Ltd 1303942/2023, heard by the West Midlands Employment Tribunal (the "Tribunal"), Ms Smith ("Smith") was called into a meeting without notice and summarily dismissed for gross misconduct regarding a breach of her employer's Social Media Policy concerning a Facebook post.

The Facebook post depicted a blindfolded woman sitting in front of another blindfolded person. Above the woman were the phrases "we’ve all had jobs like this" and "how management acts after you and co-workers clearly point out the issues at work" (the "Facebook Post"). Smith had re-posted it with an emoji but made no other comment. Her employer, Turnock Ltd ("Turnock"), took the view that the Facebook Post disparaged both management and the company itself.

Smith was called into a meeting on 25 April 2023 and presented with a list of concerns with her conduct, including the Facebook Post, and asked to comment on each of these matters.  Smith denied that she had put the Facebook Post on her Facebook page.  She was subsequently dismissed for gross misconduct. It was eventually accepted by Turnock that the Facebook Post and Smith's reaction were the principal reasons for her dismissal. An appeal was held the next day and Smith's dismissal was upheld. There were no notes or record of either of these meetings.

Smith denied that her Facebook Post and other conduct complained of amounted to gross misconduct and referred an unfair dismissal claim to the Tribunal challenging both the substantive and procedural fairness of her dismissal. 

In considering the substantive fairness of Smith's dismissal, the Tribunal analysed the Facebook Post and found that:

• the Facebook Post was not created by Smith but merely reposted by her;
• the wording associated with the Facebook Post was not Smith's but rather wording from the original meme;
• aside from a few emojis, the Facebook Post was not commented on by Smith or otherwise linked to her job and working environment at Turnock;
• the Facebook Post would be read by people who had access to Smith's Facebook page, but the evidence of the potential audience for the Facebook Post was unclear;
• whilst Smith's account linked her as an employee of Turnock, there was a remote possibility of a reader linking the Facebook Post to Smith's working environment because it was not directly critical of Turnock, nor did it make any comments about Smith's own working environment;
• it is unlikely that the Facebook Post would have damaged or adversely affected Turnock as prohibited by its Social Media Policy; and
• the Facebook Post merited some discussion with Smith and perhaps action short of summary dismissal and a reminder of the guidance set out in Turnock's Social Media Policy.

The above considered, the Tribunal concluded that Turnock did not act as a reasonable employer would in the circumstances and because Smith was called to a meeting without notice of what the meeting concerned, combined with there being no record of these disciplinary meetings, Smith's dismissal was found to be both substantively and procedurally unfair. 

Lessons from the case

The actions of the employee in this case could (and probably should) have been dealt with by simply reminding her of the company's Social Media Policy and reiterating that employees have express and/or implied duties to act in the best interest of their employer, not to bring the reputation of their employer into disrepute and not to breach duties of confidentiality. 

Generally, an employee's personal social media activity will be their own business unless they associate themselves with their employer on personal profiles and/or their social media activity is in breach of an employer's policies and/or the above duties. Even then, and to minimise risk, employers should ensure:

• that employees are made aware of company expectations regarding their use of social media, especially when associated with the business of the employer in any way;
• that any internal Social Media Policy clearly sets out the legal basis for monitoring employee personal social media activity and that the legal basis is reasonable (e.g. a legitimate interest in ensuring that the social media activity of anybody associated with the company is not without limitation: offensive, defamatory, discriminatory or does not constitute harassment, bullying and/or victimisation);
• that all monitoring and processing of employee personal and special category data stemming from social media activity is done in compliance with data protection obligations;
• that employees are informed of the possible consequences of breaching a Social Media Policy, including, in more serious cases, termination of employment; 
• that a fair process is followed both during the investigation and in any formal disciplinary action that may follow;
• that there is consistency in disciplinary action for employee personal social media activity; and
• that there is a measured response to breaches of a Social Media Policy.

A natural consequence of an employee's compliance with a Social Media Policy is that there may be limitations on their personal social media activity. However, there is a balance to be struck between ensuring that an employee's rights to freedom of speech and expression are not unreasonably restricted whilst still safeguarding an employer's commercial interest in having its reputation safeguarded. Employers are encouraged to obtain legal advice in this juggling act of competing rights before taking any formal action.