The Dangers of Social Media

We are living in an age where communication via social media is not only commonplace, it is the norm.  These days, not only do people tend to e-mail rather than write, they text rather than speak on the phone.  In addition, people not only have Facebook accounts but also use Twitter and other forms of electronic media to communicate their arrangements, thoughts and experiences to their friends.  Sometimes willingly but often inadvertently those messages can end up being available to thousands if not millions of complete strangers around the world as once the information is “out there” it is virtually impossible to either delete it or control what happens to it. 

In the days before electronic communication became so widespread, individuals were easily able to keep their work and private lives separate and what they got up to or discussed out of the office was unlikely to impact on their jobs as their employers were unlikely to ever find out.  However, with the meteoric rise in the use of electronic communication for social as well as business purposes, the boss is often privy to far more information about the employees than was ever intended.  Indeed, prospective employers are now frequently looking at Facebook profiles as well as interview performance when deciding whether to employ someone. 

But the story doesn’t end at recruitment.  There is a real risk of dismissal if an employee is caught out by what may have been flippant comments on Facebook or Twitter.  Whether such a dismissal is found to be unfair or not will very much turn on the particular facts of the case and, comfortingly for employees, the majority of the claims for unfair dismissal so far have been successful.  The reason for this, in the main, has been because the employer has not had a clear policy about the use of social media and about the possible consequences of breach of the policy.  Even for employers who do have policies in place, it is still worthwhile looking at the actual impact of any breach as whilst it may be deemed fair to dismiss an employee for a breach of a social media policy if the result of the breach has been real damage to the business, it is unlikely to be deemed fair if, in fact, there was no real damage done.

In the case of Whitham v Club 24 Limited t/a Ventura, Ms Whitham’s employer dismissed her because it was worried about the impact of her Facebook comments on its relationship with one of its key clients.  The company did have a policy in place which stated that posting information on social media sites may lead to disciplinary proceedings with sanctions including dismissal.  However, the employment tribunal found that there was little evidence of any pressure being placed upon the company from the client to sack Ms Whitham and, as a result, dismissal was deemed too harsh a sanction. 

However, in the case of Crisp v Apple Retail (UK) Limited, Mr Crisp was dismissed because he had made derogatory comments about Apple products on his Facebook page.  Apple had very clear policies about protecting its brand and gave substantial training about it, particularly in relation to posting online.  As a result, Mr Crisp’s dismissal was found to be fair.

Clearly individuals need to be very careful what they write on Facebook or Twitter, or even in a private email as anything which could in any way impact their employer’s business, either as a result of damage to reputation or which could be seen as a breach of confidence, could have very serious consequences.  Similarly, employers need to be very clear to staff about their expectations in relation to their use of social media both in and outside work and should explain exactly the types of actions which could result in disciplinary proceedings, and in particular what would constitute gross misconduct.

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About Belinda Lester
I am the managing director and founder of Lionshead Law a specialist employment law and HR consultancy company.

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