Social media and work (how social media can get you fired)

Employment Solicitor James Carmody looks at the impact of social media including Facebook, Twitter and blogs on the world of employment in the UK, and how it can be a minefield for the unwary.

All the world?s a Twitter it seems nowadays. Love it or hate it, social media seems here to stay. The usual suspects include Facebook with  600 million + users; LinkedIn  with 100 million + users and Twitter, with 200 million + users.

Will your new employer check your profile online when recruiting?

This may be at the pre-interview  sifting  or  pre-employment  vetting stage or informally, for example an  interviewer  googling  a  candidate  before  an  interview.  Candidates who let on about their hedonistic lifestyle, sexuality, disability, desire to breed a five a side team may suffer as a result.

If for example you want to keep keep sexuality private, it may be difficult to keep that off the internet. Rejecting someone due to their sexuality of course is unlawful, but how hard is it to prove? Would you reject a candidate because their Facebook page is too boring? An advertising agency might.

The Information  Commissioner?s  Office  has not issued specific guidance on using social media, but the ICO?s Employment  Practices  Code will  apply.  The code of practice suggests:

• Only use vetting where there are particular and significant risks involved to the employer, clients, etc if there is no alternative.
• Only carry  out pre-employment vetting on an applicant at a late a stage.
• Make it clear to the candidate you will do this.
• Only use vetting as a means of obtaining specific information.
• Do not place reliance on information collected from possibly unreliable sources. Give the candidate a chance to reply.

However many employers will pay scant regard to such guidance.

Can employers dismiss employees for what they?ve put on social media?

Err, yes. Reportedly a 2011 survey reported one third of respondents  admitting  to  talking  negatively  about  their employer  on  social media. 43% said that it was not fair to discipline as a result,and 40.5% said that it was, but only in extreme cases. In other words many people think its fair game to slag off the boss on Twitter.

However employers can dismiss in those circumstances. Basically, do not put anything on twitter, email, Facebook etc if you are not happy for it to form a permanent record and if you are not happy for your employer to see it.

How much protection does the Human Rights Act give?

You might think that the Human Rights Act covers your right to freedom of expression. In particular:
?    Article  8: ?Everyone  has  the  right  to  respect  for  his  private  and  family  life,  his home and his correspondence?; and/or
?    Article 10:  ?Everyone  has  the  right  to  freedom  of  expression.  This  right  shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.?

However, that will not always be the case

Supporting the employer: In Pay -v- The United Kingdom (EHCR) Laurence Pay was a probation officer involved in the treatment of sex offenders but on the side had a business selling bondage, domination  and  sadomasochism  paraphernalia. His website had pictures of him and others, semi-naked, performing S&M.  He was dismissed because this material was in the public domain and was incompatible with his position as a probation officer working with sex offenders. Public knowledge of his extra curricular activities affected the service. He was dismissed.  

At the ECHR Mr Pay relied on Articles 8 and 10, saying that in ?democratic  society?  there should be  pluralism,  tolerance  and broadmindedness to such activities. The ECHR did not agree and considered that his dismissal was proportionate on the circumstances.

Supporting the employer: In January 2011  in Preece -v-  J D Wetherspoons plc the Liverpool Tribunal made it harder for employees to hide behind personal  nature  of  Facebook  or  its  privacy settings.  

Miss  Preece  was  a  shift  manager  at  a Wetherspoons pub,  and  had  an  excellent  work  record.  During  a  work  shift,  she  was subjected to what the tribunal described as  ?a shocking torrent of verbal abuse and  physical  threats?  by  a  group  of  people  including  ?Brian  and  Sandra?,  who were  asked  to  leave. That evening,  while  still  on  duty,  she  began  a  Facebook  discussion  by  making  an entry  that  consisted  of  a  series  of  expletives with several colleagues which unsurprisingly was not too complimentary about Brian and Sandra.

Wetherspoons?  email  and  internet  policy  reserved  the  right  to  take  disciplinary action against employees who wrote or contributed to a blog (expressly including Facebook) where  the content lowered the reputation of the company, its staff or customers.

Miss Preece argued that her privacy  settings meant that her     Facebook comments would only have been seen by  40-50 close friends, rather than all her 646 Facebook friends.  She  was  dismissed  for  gross misconduct and claimed unfair dismissal.

The Tribunal considered that the decision  to  dismiss  fell  with  the range  of reasonable responses. Her communications were in the public domain regardless of her belief about their privacy. The company?s actions were justified in view of the risk of damage to its reputation.

Worth noting:
?    Wetherspoons had an express policy covering the exact situation (disparaging customers on Facebook) which she was aware of;
?    Wetherspoons had a hotline in place for employees who received abuse from customers; and
?    The entries were written in a light-hearted manner over a period of time rather and not in the heat of the moment.

Supporting the employer: In Crisp -v- Apple Retail (UK) Limited 2011 in the Bury St Edmonds Tribunal Apple objected to  a  number  of  posts  by  Samuel  Crisp  on  his  Facebook  page,  including  ?F***  you  very much work? another complained about performance of his ?jesusPhone?.  A third, referring to an Apple app, complained ?MobileMe f***ed up my timezone for the third in a week and woke me up  at 3am?  JOY!!?.   

The tribunal went on to say ?the Facebook posts were not truly private and could in fact have  been  forwarded  on  very  easily. Although he did not say on Facebook that he worked at Apple, his friends would have known this?.

Under Articles 8 and 10 he ?had no reasonable expectation of privacy? in his Facebook postings and that the curtailment Apple imposed on his freedom of expression was ?proportionate in the circumstances?.

However it does not all go in the employers favour:

Against the employer: In Stephens v Halfords plc, Mr Stephens was a deputy store manager at Halfords. He had six years? service and a clean disciplinary record. In early 2010, while he was absent due to stress, the company began consultation over a workplace reorganisation. While he was off  sick,  Mr  Stephens  attended  consultation  meetings  on  the  company?s proposed  changes,  and  was  informed  that  the  information  given  to  him  was confidential, he understood till consultation had been completed.

Following  his  consultation  meeting,  once the  group  consultation  had been  completed, he  put  up  a  Facebook  page  entitled  ?Halfords  workers against working 3 out of 4 weekends?.

Later, realising the company?s policy on social networking he took down the Facebook page, but the company found out about it and began disciplinary proceedings. At the disciplinary hearing, he apologised, said he was under stress, and would not do it again.   He  was  dismissed summarily.

The  tribunal  found  that  no  reasonable  employer  could  have  concluded  that summary  dismissal was the appropriate sanction: he had a  clean record;  apologised for his actions; and removed the  offending  page  as  soon  as  he  realised  it  was  a  ground  for  disciplinary action. He was unfairly dismissed.

For the employer: Even private messages sent outside working hours can land employees in trouble. In Gosden v Lifeline 2011, Mr Gosden sent an email from his home computer to a former colleague?s home pc which contained racist and sexist material but telling the recipient to pass it on.

The email came to the attention of his employer when it was sent to an important client and Mr Gosden was duly dismissed. The Tribunal said the dismissal was fair. Even though he had a right to privacy under the Human Rights Act 1998, and even though it was a private email sent outside working hours, the Tribunal bore in mind that Mr Gosden wanted his colleague to pass it on. Furthermore the sentiments expressed were completely contrary to the charity Lifeline?s stated aims and may have brought them into disrepute.

Against the employer: In Whitham v Club 24 Limited t/a  Ventura issued  in  2011, Mrs  Whitham  was  a  team  leader  with  an  exemplary  record.  After a difficult day at work, she posted on Facebook ?I think I work in a nursery and I do not mean  working  with  plants?.   

When the company found out Mrs Whitham wrote a grovelling letter of  apology but she was dismissed. The company said it was fearful that the comment could damage it clients relationship but did not find out whether this was actually the case.  

The company pointed out its handbook which stated that employees  should  remember  their  obligation  of  confidentiality  ?and  that  posting information about your job on the internet (for example, on social networking sites such as Facebook and MySpace) may lead to disciplinary proceedings and/or dismissal?. The tribunal did not consider her comment to be  ?confidential information?.  The dismissal was outside the band of reasonable responses and was unfair.    

Can employers use social media as a tool during disciplinary investigations?

What if an employee  off  sick  with a bad back posts comments about doing sports on  his  Facebook  page? If your employer can find out bad stuff about you from your Facebook page etc, they can use it against you. You would be wise to restrict your privacy settings to give yourself some protection.

Can employers discipline for bullying, harassment and/or unlawful discrimination on social media?

Yes is the short answer. An example might be a hate-page on Facebook, derogatory postings, offensive or threatening direct messages or sexist or racist postings.

Can your employer get sued for defamation as a result of what you say on social media?

It depends. Without going into great detail an employer may be: (a) a  joint  tortfeasor  where  it  has  authorised  or  procured  a  tort  by  one  of  its employees; or (b) vicariously liable for a tort committed by its employee if the tort was committed in the course of employment. Defamation laws apply just as equally to the internet as other printed mediums. Your employer will be none too pleased if it gets sued as a result of what you put on Twitter after a night in the pub.

As above, don?t put anything on social media sites on the web unless you will be happy for it to find its way back to your employer. If you bear that in mind, you probably wont go too far wrong.

Conclusion

As above, don?t put anything on social media sites on the web unless you will be happy for it to find its way back to your employer. If you bear that in mind, you probably won?t go too far wrong.

About James Carmody
James Carmody qualified as a solicitor in 1998 and founded Reculver Solicitors http://www.reculversolicitors.co.uk in 2004. He specialises in UK Employment Law and has advised employees and employers alike on a variety of issues including employment contracts, redundancies, disciplinary matters, unlawful discrimination, compromise agreements, post termination restrictions and much more. James lives and works in London.

You can follow James Carmody on Twitter from @jamescarmody

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