using Facebook (and other social media) at work

Posted on January 28, 2013 by Martin Malone

It was reported on 9 January that 11 staff in the Department for Work and Pensions have been sacked for using Facebook or Twitter at work. They are among 116 DWP employees to have faced disciplinary proceedings concerning their use of social media since January 2009. Of the remainder 34 received a final written warning, 35 a written warning and 36 a reprimand.

Most employers have a policy dealing with access to social media. For example, at Canter Levin & Berg we have a fairly detailed social media policy which assists our staff in getting the most out of social media for both their own and the Firm’s benefit. There are also very clear guidelines about what should and should not be done and said and the important interaction with other key policies, such as that dealing with equality and diversity.

We also provide our Employment Solutions subscribers with a draft policy which can be tailored to suit their particular requirements. In practice we find that there is a wide range of views about what should or should not be tolerated, from a complete ban on all social media use during working hours to the positive encouragement of contributions and participation, particularly if the company has itself embraced social media as a way of engaging with clients, customers and enquirers.

Theo Paphitis, Ryman Chairman and TV "Dragon", is at one end of the spectrum:

The explosion in online activity has resulted in an orgy of self-indulgence and exhibitionism. Businesses might have been helped by the ability to promote themselves on the internet, but they have also been hit by the web’s encouragement of time-wasting by their staff.

His view is particularly surprising, taking into account his own high profile in social media, as demonstrated by his promotion of "Small Business Sunday" on Twitter (#sbs).

So what’s the answer? Continue reading →

can you be sacked for posting on your own Facebook page?

Posted on January 28, 2013 by Martin Malone

There has been a notable increase in the number of employers (particularly those in the public sector for some reason) checking their employees’ social media activity. Personal Facebook pages appear to have come in for considerable scrutiny and comments which might be construed as critical or otherwise potentially damaging to the employer have resulted in disciplinary cases and, on occasion, dismissals. Sometimes such action has resulted from contributing to someone else’s page.

Against this background Smith v Trafford Housing Trust was one of the most newsworthy cases in late 2012, arising as it did from disciplinary action taken against an employee for posting comments on Facebook which were critical of the idea of gay marriages in church. The High Court found squarely that Trafford had been in breach of contract in demoting Mr Smith for those remarks, making it clear that there was no realistic chance of anyone reading those comments on his wall (which Mr Smith clearly treated as a personal social medium) as being in any way representative of his employer’s views.

The approach adopted by the High Court (Mr Smith elected to claim damages for breach of contract rather than compensation for unfair dismissal) is worthy of fairly detailed consideration, bearing in mind that Facebook is ubiquitous and its users are often straying into the publication of material which would never otherwise have seen the light of day.

On a Sunday morning Mr Smith read an article on the BBC News website entitled "Gay church ‘marriages’ set to get the go-ahead". He posted a link to the article on his Facebook wall and added the comment "an equality too far". Later that day one of his Facebook friends (who happened also to be a work colleague) replied "Does this mean that you don’t approve?". After a brief further exchange Mr Smith posted "no not really, I don’t understand why people who 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 his posts Mr Smith was suspended from work and faced disciplinary proceedings. Continue reading →

Twitter, Facebook and the like

Posted on June 23, 2011 by Martin Malone

Cases concerning the when and how of employee use of social networking sites (such as Twitter and Facebook) are now beginning to reach the employment tribunals.

No new legal principles are involved in deciding when and whether it is appropriate for an employer to discipline or even dismiss an employee for inappropriate use of these sites. But because the subject is likely to come up with increasing frequency it may be useful to draw attention to a couple of recent cases.

In the first (local) case an employment tribunal found that dismissal was within the band of reasonable responses open to pub chain Wetherspoons after it dismissed a shift manager at one of its pubs in Cheshire because she had posted insalubrious comments about two customers on Facebook. The customers concerned had abused the manager, a Miss Preece, when she was on duty. The abuse had continued afterwards in that Miss Preece was later subjected to anonymous telephone calls, including one in which she was told "get your f*cking P45 ready because you are out of here…". An important factor which led the tribunal to rule that the dismissal was fair was that Miss Preece had signed up to Wetherspoon’s formal email and social media policy which included an explicit statement to the effect that disciplinary action could be taken if any comments on Twitter, Facebook etc. should "be found to lower the reputation of the organisation, staff or customers" (Preece v JD Wetherspoons plc Liverpool ET on 18 January 2011).

However in another case a few weeks earlier an employment tribunal held that dismissal was not within the band of reasonable responses open to the Halfords chain of stores. Halfords had disciplined and then dismissed a deputy manager who had posted negative comments on Facebook. Mr Stephens had set up a Facebook page: "Halfords workers against working 3 out of 4 weekends". He sued for unfair dismissal, won and was awarded £11,350 compensation (Stephens v Halfords plc Torquay ET on 3 November 2010).

In this type of case, as in any "misconduct" unfair dismissal case, an employment tribunal will look at whether the employer went through appropriate procedures and will consider whether or not dismissal fell within the range of reasonable responses open to an employer in all the circumstances (and will not substitute its own view of what would have been reasonable). As many HR practitioners are aware, in carrying out this exercise an tribunal will apply three main tests, as follows:

At the time when he dismissed him, did the employer believe that the employee had been guilty of the misconduct?
Were there reasonable grounds for the belief?
Did the employer carry out as much investigation into the matter as was reasonable in all the circumstances of the case before dismissing the employee?

Subscribers should note that we have added a draft social media policy to the library of downloadable documents in the protected area of our website.