disciplinary hearingsdismissal by employeremployment lawgross misconductsocial mediaunfair dismissal

Right, so I like a good blog on employment law-related topics and, in this blog, I’m looking to blog about employee blogging, even if those blogs are about blogs (or not blogs at all). Clear? Of course not, the only near guaranteed thing is that, by now, the word ‘blog’ has probably started to lose meaning in that way that words do when constantly repeated.

On a slightly more serious side, this article is about what happens when an employee publishes content (whether on social media, within physical media (including a local or national newspaper) or within personal blogs) that potentially harms the reputation of their employer. Where is the line drawn between innocent, harmless blog and, on the other hand, an online article or post that seriously harms the business of an employer?

As per the above title, I briefly covered this topic around 4 years ago in a past blog post. That article mentioned the rather quirky case of Walters v Asda Stores, heard in 2008, in which a manager jokingly (I hope!) posted a message stating that, whilst she was supposed to love her customers, hitting them with a pickaxe would make her much happier… The Employment Tribunal found that Asda had focused too much on the mere fact she was a manager rather than considering other factors (such as, I would imagine, how many people would have seen the post, would those people have actually thought she was being serious and/or would people really judge Asda for staff members occasionally making slightly inappropriate jokey remarks outside work) and ruled that the dismissal was unfair.

Overall, this area is one where (thankfully from my perspective!) an employee usually has to do something fairly impressive to be at risk of serious disciplinary action. In saying that, it is a slight employment law myth that writing personal blogs (including social media posts) is a huge risk – in fact, I note that the American Management Association website has an online article named “How to blog without getting fired” and two of the main headlines are “Blogging about your job or your boss may get you fired” and “Beware: employers are prescreening job applicants’ blogs”. Let’s have a quick look at the potential accuracy of both of these headlines (from a UK perspective).

So, let’s tackle the first headline. Does blogging about your job or your boss put you at risk of being dismissed? The simple answer? Yes. The longer answer? Yes, but only if your blog is sufficiently detrimental to the reputation of your employer.

So what is sufficient to harm an employer’s reputation? Unfortunately, there is no simple answer to this but let’s explore two quick examples:

EXAMPLE ONE – An employee has a bad day at work and posts on his Facebook account that his boss ‘is an idiot’ and ‘unfairly denied a holiday request’. He doesn’t name the boss, doesn’t mention his company and his Facebook account, which only has 40 friends, is private (i.e. only his 40 Facebook friends can view it, not the general public).

Is the employee likely to be dismissed? Not really. Hardly anyone will read the comment and, overall, whilst the boss in question may well want a word and, potentially, a serious chat about social media posting and keeping holiday requests confidential, we’re not looking at a likely gross misconduct dismissal here. Albeit, in saying this, it’s not exactly the best way to stay on your manager’s Christmas card list!

EXAMPLE TWO – An employee has a horrible week at work working in a food factory and, due to hating the low pay, decides to publish a Twitter post (on a publicly accessible account – i.e. accessible by those who don’t formally ‘follow’ you) making up a false allegation that some workers spit on the food on the conveyor belt. 

The employee quickly realises that his post was foolish and deletes it 10 minutes later but, unfortunately, due to having his employer named within his Tweet, it was screenshotted and re-posted by several users. It quickly does the rounds on social media and even ends up gaining traction within the odd newspaper.

Does it matter that the employee quickly realised their mistake and tried to delete it? Yes. Does that automatically prevent them being dismissed on gross misconduct grounds? No, it would merely be a mitigating factor for the employer to consider. The deciding factor may well be the extent of the damage to the employer’s reputation which, if the original Tweet was re-posted, may well be large enough to allow for gross misconduct dismissal.

The second example above is a good example of how far an employee is likely to have to go to face gross misconduct dismissal for blogging and/or social media posts. Other examples include discriminatory comments against individuals on the basis of (for example) gender, age, sexual orientation, disability, religion or race.

As for the second headline about pre-screening job applicants’ blogs, whilst the occasional employer might google the job applicant’s name, I doubt most would act further and intentionally seek out and read individual blog posts prior to interview!

Overall, then, minus any truly controversial content, I’m relieved to conclude that writing blogs is unlikely to put employment at risk and, unfortunately for Canter Levin & Berg, that means the current blog train is unlikely to lose steam anytime soon…