Employment law and social media


With the rise in popularity of social media, from Twitter accounts, to Facebook, to more professional sites such as Linkedin, social media is permeating through most aspects of our everyday lives. This is also true for our working lives, and employment law.

The number of dismissals which have been a result of a Facebook comment, or Twitter harassment of another colleague, are on the rise. Many of these have actually been unfair dismissals, with employers taking an over-sensitive yet stringent approach to comments made about them on social media sites.

One employee wrote “I think I work in a nursery, and I don’t mean working with plants” on her Facebook page. This was enough to get her fired from her job. Unsurprisingly, she was found to have been unfairly dismissed by the employment tribunal which heard her case.

Are Employers Too Sensitive About Social Media?

Cases like the one described above are becoming increasingly more common. With this in mind, some believe that employers are becoming over-sensitive when it comes to the use of social media, particularly when the firm/work-related topics are posted online.

Take as an example the US firm who went as far as to request that candidates at their job interview provided their Facebook passwords, so that the employer could snoop around in their private affairs. Not only is it immoral to put pressure on people to provide such confidential information (particularly when those people are more than likely eager to get a job and so may feel economic pressure to hand it over), but it is also wrong to be judging people on their private lives for a professional, working role. The two are not the same, and what one does in their private lives (providing it is legal), should be of no business to an employer if it does not interfere with their working lives or productivity.

What Should Employers Do to Protect Themselves Against Successful Unfair Dismissal Claims?

One of the reasons why there are a lot of unfair dismissal claims regarding the use of social media in/about the workplace is that in most of these cases, employers fail to follow the necessary complaints/dismissal procedures which they would have otherwise normally have followed if the employee’s conduct was not related to the use of social media.

Employers should therefore focus on providing their employees with specific training protecting the image of the firm and the potential consequences of their social media usage.

Additionally, the employer needs to consider whether the comments made were likely to cause damage to the firm. Consideration should be taken over this step as despite a comment being an unsavoury one, if it is not a comment which is likely to cause damage to the firm, it may be grounds for unfair dismissal if the employer jumps the gun and just dismisses the employee. Other factors to consider at this point would be whether any confidential information had been exposed, whether clients/customers had access to the information posted, or whether identity of the employer was evident from the posting.

Having considered these factors, the employer should then consider whether dismissal would be a reasonable and proportionate response to the employee’s actions. Factors to consider here would include whether it would be sufficient to give the employee a warning, whether a reasonable investigation had been carried out, whether the comments amounted to gross misconduct or whether there were any other alternatives to dismissal that could be explored.

Employers should therefore carry out the above procedures when dealing with employment law and social media, in addition to ensuring they have a satisfactory social media policy in place at work, so that both employer and employee are aware of the procedures and guidelines concerning the use of social media.

This post courtesy of http://www.darlingtonsemploymentsolicitors.co.uk – many thanks.