Social media continues to adapt and develop, changing how businesses and their customers interact with each other. As with everything, social media has its pros and cons. More people than ever are using social media, many on multiple platforms sharing their photos/videos, thoughts/opinions, and lifestyles.
This opens a whole new arena for employers to deal with, especially when it comes to employees’ inappropriate behaviour on social media. Due to social media the gap between, employees’ private life and work life has narrowed significantly.
As social media comes more and more part of our daily lives, we see the rise of inappropriate behaviour on social media. Business owners and managers need to be trained in managing inappropriate behaviour on social media, safeguarding businesses from tribunal claims.
Employees’ online and offline conduct outside of work can influence their employment and may result in the employee’s dismissal if deemed inappropriate and have an impact on the employer’s reputation.
However, employers shouldn’t react irrationally or without significant evidence whilst following the correct disciplinary procedure. Acting irrationally or too quickly may result in an unfair dismissal claim. Furthermore, businesses must consider whether the dismissal falls under ‘conduct’ or for ‘some other substantial reason.’
Employees’ inappropriate behaviour on social media can take different forms, including;
Harassment
Sharing or posting comments which are based on an individual’s gender, race, religion, sexual orientation, or other protected characteristics may amount to harassment.
This may involve engaging in cyberbullying, making comments which are deemed threatening or derogatory, or sharing harmful content on social media platforms.
Inappropriate/explicit content
Posting or sharing of content deemed to be inappropriate may include sexually explicit or violent images, sharing of drug or alcohol use, or profanity.
Political or religious content
Engaging in posts sharing an employee’s political or religious views, or alternatively the employee writing and posting it themselves. This can be seen as representing the business’s viewpoint which may impact the business’s reputation. This may include the singing of songs with paramilitary references.
Disclosing confidential information
Sharing of businesses’ confidential information on social media platforms, including any information about the company itself, it’s employees or clients. Sharing of this information could be deemed as a breach of confidentiality.
Denigrating remarks
Posting comments where the employee is criticizing the company, management, or co-workers. Furthermore, making negative comments regarding the business’s products or services as well as sharing any grievances which are work-related.
External pressure to dismiss an employee.
If an employer feels pressure from an external party such as a supplier, customer, or sponsor to dismiss an employee following an untoward incident deemed as inappropriate behaviour on social media is circulating, this could potentially lead to an unfair dismissal claim.
Back in May 2022, a video was broadcast live on social media where a group was singing a song referencing a young Northern Irish woman who was murdered. This resulted in employees being dismissed with immediate effect due to the religious and political aspects involved. However, these employees have now submitted an unfair dismissal claim stating whilst they were present, they did not participate in the singing.
Businesses had been put under extreme pressure to take action, following this inappropriate behaviour on social media going viral, and may have reacted too quickly, not taking the correct steps and procedure for dismissing an employee.
External pressure to dismiss an employee may be included as appropriate evidence through the disciplinary procedure in relation to an employee’s actions or conduct, this may be inside or outside of work. Not every incident will be processed through the disciplinary process, furthermore, not every incident will amount to gross misconduct warranting dismissal following the first offence.
In some cases, the legal term for dismissal may not be ‘conduct’ but rather ‘some other substantial reason’ (SOSR), which may justify dismissal.
Under Article 130 (1) (b) of the Employment Rights Order 1996, SOSR can amount to a fair reason for dismissal as ‘some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.’
External pressures include clients, if a business only has one client and they have stated they would stop all work if the employee was not dismissed, this may warrant a fair dismissal due to some other substantial reason rather than conduct.
Tribunal cases relating to social media.
Trasler v B&Q ET
An employee posted on Facebook angrily, following a stressful day at work that his, “place of work is beyond a F***ing joke” and that he would be, “doing some busting”. These comments were noticed by a co-worker and reported to his employer. Following this, the employee was dismissed.
The tribunal found this to be an unfair dismissal, finding the employer to be unreasonable for concluding the comments on Facebook was a threat to the business’s reputation, nor was the employer and employee’s reputation undermined to the level that it warranted the dismissal.
Amey v London Borough of Barking & Dagenham
A compromising photograph of a naked Assistant Head Teacher had surfaced on Facebook, his wife had initially taken the photograph on her Blackberry phone. The teacher’s wife agreed immediately to delete the photograph, and the teacher believed his wife had deleted the image.
The Blackberry was taken to a repair shop as it had developed a fault but couldn’t be fixed. Fast forward 15 months and the image resurfaced on Facebook and students at the Assistant Headteachers circulated the photograph.
The school conducted an investigation into the incident and found the employee did not take enough steps to destroy the image, to ensure would not be made public again. The employee was dismissed on grounds of gross misconduct.
However, at the tribunal this dismissal was found to be unfair as the employee did not take the photograph himself, nor had posed for it, and fully believed the image had been deleted. The tribunal found that the Assistant Head Teacher was a victim of a crime and there were no acceptable grounds for the school to determine he had done anything wrong or failed to do anything.
The tribunal stated that if the employer had dismissed the employee on grounds of some other substantial reason, and followed a fair procedure it could have been a fair dismissal.
The tribunal awarded the employee only his notice pay plus £300 for loss of statutory rights. His basic award wasn’t reduced.
Creating a social media policy
Developing and implementing a social media policy in the workplace is key to managing inappropriate behaviour on social media. This policy will outline the standards and guidelines expected of employees when posting or sharing on social media.
The social media policy shouldn’t be limited to managing an inappropriate behaviour on social media involving the employee but, it must also detail the position of the employer and what action they can take.
The social media policy should detail all related policies which may apply following the inappropriate use of social media, including;
- Code of conduct/Statement of ethics and values
- Equal opportunities policy
- Anti-harassment and bullying policy
- Dara protection
- IT or electronic communications policy
- Disciplinary procedure policy
Examples of social media policy statements;
“You must not express opinions on our behalf via social media unless expressly authorised to do so by your manager. You may be required to undergo training to obtain this authorisation.”
Outline the exact don’ts of social media, e.g.;
You must not use social media to;
- Defame or disparage the business, employees or third parties.
- Harass, bully or unlawfully discriminate against employees or third parties
- Make false or misleading statements, or
- Impersonate other employees or third parties.
Within the policy, employers may stimulate the following;
“You must not display or disclose your affiliation with us on your social media profile or in any social media postings. Given that members of the public may still establish your affiliation with us, you should also ensure that your profile and any content you post are consistent with the professional image you present to clients and colleagues.”
Outline actions that may apply if breaches occur;
“You may be required to remove any social media content that we consider to constitute a breach of this policy. Failure to comply with that request may in itself result in disciplinary action up to and including summary dismissal.”
Don’t have a social media policy in place? Our team of HR consultants are experts when it comes to workplace policies, we will also complete an audit of your employee handbooks to identify any gaps to safeguard your business. Our HR consultants can advise on dealing with inappropriate behaviour on social media from employees.
