Everyone who knows me seems to associate me with employment law blogs. An example? I went to one of my best friend’s wedding last weekend and, whilst at the meal following the wedding I caught up with the sister of my best friend. We hadn’t seen each other in years and, naturally, I asked how she was. She said she was good and, after a brief chat, turned the conversation round and said ‘me and my husband follow your blogs, they’re very good’ and called her husband over. Instantly, the husband came over, we caught up and proceeded to spend 20 minutes chatting about employment law issues in the workplace, many of which were subjects of past blogs.
And therein lies the power of social media, even with a couple I’ve only managed to see on two occasions since their wedding in 2009, they had read my blogs and knew where I was up to career- and life-wise solely due to my social media.
The obvious problem that comes with social media is reach. As I’ve just mentioned, it can reach people you don’t get the chance to directly contact but, at the same time, it can mean that comments meant for just a few can reach more people than realised. And, unfortunately, it is common for employees to get into hot water by posting negative comments that come to the attention of their manager.
Now, obviously, simply posting content online concerning your work or about your employer isn’t a sackable offence. As a writer of numerous blogs for Canter Levin & Berg, I’m very glad of that! However, in saying this, negative comments and/or posting confidential information are exceptions to this rule, mainly because they can be shown to cause damage to the reputation of the employer (without which, the dismissal is likely to be legally unfair).
So, let’s look at two examples of social media posts that may concern employers using some entirely fictitious individuals…
In the first example, Mary Raspberry works for Great British Cake Up Limited. She has done so for 18 years and has a completely clean record. After a particularly gruelling week, in which she has made twice her usual number of cakes, Mary gets home on Friday night in an exhausted state. Using her iPhone and the new Facebook app her grandson helped her download (but didn’t fully explain), Mary posts “It’s been a really exhausting week at work. I’m glad I’m home and can get some peace and quiet and a break for a change.” Unfortunately, Mary doesn’t understand that her Facebook profile is public and that her Manager can view her post. Instead, she thought that only family members could view it. Mary also didn’t realise that a negative implication could be read against her employer on a second reading of the post.
Is Mary going to be dismissed by Great British Cake Up Limited? No. Whilst her comment is slightly negative, it isn’t a serious issue and isn’t realistically going to adversely affect the orders coming into the business to a serious degree. Rather, the best course of action would be for Mary’s boss, Raul Bollywood, to have a quiet, informal word with her on Monday morning about social media use.
In the second example, a waiter from Barcelona called Manuel works for an Indian restaurant called Balti Towers. Unfortunately, Manual has also had a very busy week due to a local golf championship leading to a huge influx in customers. Manuel has been told that he is required to work Saturday this week and he is massively unhappy about this (despite the fact his employer has the right to do so within his contract of employment). Upon getting home, Manuel writes a scathing Facebook status accusing the restaurant of serving undercooked meat, having a rat and cockroach infestation and failing Council food hygiene checks. His complaints are completely false.
However, because his Facebook profile is public, several companies who book the restaurant for social events see the posts and contact the restaurant to inform them that they will be cancelling their bookings in direct response. Therefore, due to Manuel’s false social media rant, the restaurant has lost a lot of business and potential profit.
So, after a fair investigation, can the restaurant sack Manuel? Most likely, yes. In fact, if the restaurant had a strong social media policy covering this kind of conduct, all the more likely. Whilst the restaurant would have to consider any mitigating circumstances, it is unlikely that Manuel could adequately explain his post or argue that damage to the restaurant wasn’t completely foreseeable as a result of his post.
Obviously, this doesn’t mean that employees shouldn’t ever post online. They just have to ensure they take care when they do so, particularly after a tough day at work. The easy rule to live by is the customer test – i.e. ‘if you wouldn’t say it to a customer face-to-face, don’t say it online’. Whilst employers are required to give employees the benefit of the doubt in some situations, this largely ends when actual financial and reputation harm is caused to their organisation.
Myself? I’ll continue to use my social media posts to advertise my Canter Levin & Berg blogs, post pictures of Marine FC games and send FRIENDS-related images.