Friday, 3rd November 2023

Social Media – The Good, The Bad, and the Unfair Dismissal

The question of whether social media use by employees on personal platforms is reflective of, and therefore can be stopped by, employers is one which has become even more prevalent with the current political climate in the United Kingdom and across the world.

From the broad spectrum of Gary Lineker, a public figure, tweeting political views from his personal X (formerly known as Twitter) account, or an employee posting support for political movements or viewpoints on Facebook, Instagram, or their platform of choice  – similar rights and issues are at play. Namely, to what extent do employees have freedom of speech on social media, where their posts could either (a) reflect poorly on their employer, or (b) negatively associate their employer with controversial messages, particularly where the employer would not wish to adopt a particular stance.

In this article we will briefly explore the balance of these issues, noting their importance in the current economic and political climate.

Employer’s Rights

The first consideration would be whether a private social media post could amount to misconduct, or gross misconduct. Gross misconduct is naturally the more serious breach by an employee.. Both can, however, be grounds for dismissal dependent on the situation.

Gross misconduct are acts which ‘are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence’ (ACAS Code of Practice 1, paragraph 23). Dismissal for misconduct, however, requires notice and would typically follow warnings prior to dismissal.

In actions such as social media use, if the post is incredibly damaging (or has the potential to be incredibly damaging) to the employer’s business, then the employer may wish to terminate the employee’s contract immediately in order to protect its reputation. As such, they would need to establish that the post amounted to ‘gross misconduct’.

The case of Walters v Asda Stores Ltd explores the difference between ordinary misconduct and gross misconduct stating, among other things, the need for a clear social media or internet use policy to be in place. By having such a policy in place, an employer can reasonably specify those actions on social media usage which would conduct misconduct or gross misconduct in relation to the employee’s position in the workplace. As such, it is important to firstly, implement a policy, and secondly, make all employees aware of this.

On the other hand, if such a post did not amount to misconduct or gross misconduct but that the employee’s actions were sufficiently serious that continued employment would damage the employer’s reputation, the employer may decide that their dismissal is justified for ‘some other substantial reason’. However, in practice dismissing for reputational risk under this potentially fair reason for dismissal is difficult to establish, and in any event if sufficiently serious would likely be a conduct matter.

Employee’s Rights

The right to freedom of expression is a qualified right, meaning that it is subject to, among other things ‘the protection of the reputation or rights of others’ (European Convention of Human Rights, Article 10(2)). Consequently, if an employer wishes to dismiss an employee over a social media post which could bring the company into disrepute, it must have reasonable grounds to believe that the specific post would do so.

In the European Court of Human Rights case Herbai v Hungary (Application no. 11608/15), the Court considered the following points needed to be addressed by an employer where they are restricting an employee’s freedom of expression:

  • The nature of the speech
  • The motives of the author
  • The damage caused by the speech to the employer
  • The severity of the sanction imposed

So, how can this be established? The answer is subjective and will turn on the facts of each case. For instance, posts of an offensive nature. In the case of Webb v London Underground Ltd, an employee was dismissed due to posting offensive remarks on her private Facebook page. The dismissal was deemed fair as the interference with the employee’s freedom of expression was justified to protect the employer’s reputation. Despite only having 200 ‘Facebook friends’, the post was widely circulated and had offended other members of staff of the employer, as well as the employer’s standing as a public body.

Consequently, as an employer it is important to consider the balance of your employee’s rights as well as the importance of the reputation of your business if you decide to dismiss an employee based on their conduct on the internet. In these times where social media use amongst many staff is constant the temptation can be for employees to offer their personal views on a range of world affairs instantaneously adopting the approach of “type first, think about it later”, getting the balance right can be more and more challenging for employers.

If you need assistance with matters of a similar nature to this article, please contact Michael McDonnell, William Gubbins, Darcy Still or your usual contact at the firm who would be happy to assist.

This article is for general purpose and guidance only and does not constitute legal advice.  It should not replace legal advice tailored to your specific circumstances.

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