Social Media Policies – Application and Impact

Two recent cases concerning the use of social media by employees highlight the importance for employers of having a clear policy on the use of such public forums by their employees.

In the first, Smith v Trafford Housing Trust, the High Court  held that a Christian employee was entitled to express his views about gay marriage on Facebook and that doing so did not constitute misconduct.

Mr Smith was employed by the Trafford Housing Trust and he was contractually bound by a code of conduct.  This code made clear that:

1. employees must show commitment to the aims of the Trust and have regard to the need to maintain a positive image for the trust;

2.  employees must act in a non-confrontational, non-judgmental manner with customers and colleagues; and

3.  employees must not engage in activities which might bring the Trust into disrepute, either at work our outside work, including by making derogatory comments about the Trust or engaging in unruly or unlawful conduct on sites such as Facebook.

He was also bound by the Trust’s Equal Opportunities Policy.  This policy stated that colleagues and customers should be treated in a respectful and non-judgmental way and that employees should not engage in any conduct which would make another person feel uncomfortable, embarrassed or upset.

Mr Smith used Facebook and had 45 “friends” who were colleagues.  On his Facebook profile he identified himself as a manager of Trafford Housing Trust and described himself as a “full on charismatic Christian”.

On 13th February 2011, he posted a link on his wall to a BBC news article, “Gay church ‘marriages’ set to get the go-ahead”.  He added his own comment after the link which read “an equality too far”.

His colleague, Ms Stavordale, saw the link and Mr Smith’s comment and asked “Does this mean you don’t approve?”

Mr Smith replied  “no, not really, I don’t understand why people have no faith and don’t believe in Christ would want to get hitched in church the bible is quite specific that marriage is for men and women if the state wants to offer civil marriage to same sex then that is up to the state; but the state shouldn’t impose its rules on places of faith and conscience.”

As a result of these comments, Mr Smith was disciplined and was found guilty of gross misconduct.  He was demoted rather than dismissed and this was held to be a breach of contract.

The decision of the Court was summarised as follows:

1.  The postings were not capable of bringing the Trust into disrepute.  No reasonable person would think that he was expressing views on the Trust’s behalf.  While a Facebook account was capable of being used for work-related communications, Mr Smith’s Facebook wall did nothing of the sort.  While there was potential for the expression of views causing distress to employees to bring the Trust into disrepute, the moderate expression of Mr Smith’s views about gay marriage on his personal Facebook wall at a weekend out of working hours could not lead a reasonable reader to think the worst of the Trust for having employed Mr Smith.  The court added that “the encouragement of diversity in the recruitment of employees inevitably involves employing persons with widely different religious and political beliefs and views, some of which, however moderately expressed, may cause distress among the holders of deeply felt opposite views”.

2.  The obligation not to promote religious beliefs did not extend to Mr Smith’s Facebook wall irrespective of the fact that 45 of his Facebook friends were work colleagues.

3.  A difference of views is bound to cause upset, but that is the price of freedom of speech.  It was held that Mr Smith had not failed to treat his colleagues with dignity or respect or acting in any way liable to cause offence.  Viewed objectively, Mr Smith’s postings, either themselves or the manner in which they were expressed, were not judgmental, disrespectful or liable to cause offence.

This decision affirms an employee’s right to privacy, viewing Facebook as a social and personal medium, unless the context suggests otherwise (c.f. Novak v Phones 4U Ltd below).  According to the court, it was clear from the employee’s Facebook page that he was not using it for work-related purposes, despite the fact that 45 of his Facebook friends were colleagues.

The EAT’s decision in the case of Novak v Phones 4U Ltd, however,  highlights the scope for comments made on social media to form part of a continuing act for discrimination purposes as such postings tend to remain in public view for long periods of time (if not indefinitely).  This differs from instances of banter in an office where, once the offending statement has been made, time starts to run for the purposes of limitation and issuing claims.  Although this was not specifically addressed in the judgment, it is an interesting point to note for possible future cases involving social media.

It is also an example of a case where the context of the postings are clearly work-related and not social or private.  In Novak, the claimant’s colleagues were using Facebook to specifically discuss and make fun of the claimant, a work colleague in relation to an incident at work.  The claimant  (an American with a disability) was a manager at a mobile phone store. He fell down the stairs at work and has been absent from work ever since. As a result of the comments, he brought claims for disability and race discrimination. In general, office banter has an immediacy which means that those participating will tend not to return to the original joke long after the event, whereas the nature of social media sites invites continual comment and dialogue.  This is what happened here.  The comments continued over a period of several months, with a gap of 7 weeks between the first set of postings and the final set.  Nevertheless the EAT held that the two sets of Facebook postings were one continuous act.  The subject matter of the postings was the claimant’s fall and his subsequent grievance.  It was therefore held that there was clearly a connection in terms of individuals, subject matter and timing of the posts and as such it was one continuing act for the purposes of limitation.

The clear message from both these cases is that social media is not always private but may be deemed so, depending upon the context of its use, even if several people from one place of work interact on it.  As such, it is absolutely vital for employers to have clear social media policies which are carefully drafted and which staff are notified of and, preferably trained on.  It is also vital that such policies are implemented and that breaches of such policies are dealt with consistently across the workplace.

In my next post I will provide a check-list of things to look out for when using e-mail and social media.

 

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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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