Social Media and Employees: What constitutes misconduct

by Andrea London


A new generation of employees in the work-place are embracing social media as part of the fabric of their daily lives with a recent study suggesting around 70% of UK adults use social media.

As social media use increases, the law in this area is under constant development and the courts are having to adapt accordingly; they are trying always to find a balance between an employee's right to freedom of expression and the need to reduce the potential for reputational risk or damage to the employer's business. In this series of articles, I will discuss some recent case precedents and how they could determine the shape of business policies regarding social media use in employment.

The first, basic questions to tackle in this complex area, is what constitutes misconduct and how employers can deal with acts of misconduct on social media. To this end, courts have been placed under increasing pressure to provide guidance on such matters. They have had ample opportunity, but have refused - citing that they do not wish to get into a 'tick box mentality'.

Social media or internet misuse/ abuse may be misconduct - or gross misconduct - amounting to a potentially fair reason for dismissal or repudiatory breach of contract, giving a basis for summary termination. However, an employer cannot normally take action against its employees for what they do on their own computers at home, in their own time, provided that their activities do not damage the employer's reputation.

Genuine expressions of personal opinion which are not attributable to work or which cannot be implied as made in the capacity of employee may be outside the scope of disciplinary action on the part of the employer. However, UK case law shows that it is possible for an employer to fairly dismiss an employee for their conduct outside of work, which I will investigate in coming weeks through studies of cases relating to Facebook, Twitter and email usage.

How does the law deal with social media misconduct?

Key issues for employers to consider are whether the employee's misconduct affects the employment relationship or working environment, or damages the employer's reputation. The proposition that conduct may damage the employer's reputation, even if it takes place outside of work, is particularly evident when it comes to social media, but the bottom line is that social media misconduct must be treated like any other form of misconduct.

Employees with more than two years' service have the right not to be unfairly dismissed (section 94(1), ERA 1996). In order for a dismissal to be fair, the employer must establish that the reason for dismissal is a potentially fair reason under section 98(1) of ERA 1996 and follow a fair procedure.

Where the reason for dismissal is conduct, an employer must establish that, at the time of dismissal it believed the employee to be guilty of misconduct, that it had reasonable grounds for doing so and that it had carried out as much investigation as was reasonable in the circumstances (British Home Stores Limited v Burchell [1978] IRLR 379).

An employer's decision to dismiss needs to fall within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted (Iceland Frozen Foods Ltd v Jones [1982] IRLR 439; ICR 17). In assessing the reasonableness of an employer's decision, a tribunal must not substitute its view for that of the employer.


Employers' Vicarious Liability

An issue of concern, particularly with social media is that an employer can be vicariously liable for the actions of its employees, if these are undertaken 'in the course of employment'. Social media misconduct can often stem from expressions of personal opinion that may constitute harassment.

Harassment is defined under s. 26 of the Equality Act 2010 as:

"unwanted conduct related to a protected characteristic, which has the purpose or effect of violating someone's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the person exposed to it"

If harassment occurs or action is taken 'in the course of employment' then unless 'all reasonable steps' have been taken by the employer to prevent the act complained of, the Employer may well be found vicariously liable for the employees actions. Whether something is 'in the course of employment' is a question of fact; as a lay person would consider it interpreted as it is in everyday speech. If done outside of work, then consideration is made of whether there is a sufficiently close connection with work, which is easier said than done when dealing with the virtual world of social media.

The 'European element' is a common theme running through a number of the cases given the impact and effect of the Convention on the rights, ability or restrictions of employees to make comments on media such as Facebook, Twitter and other social platforms and the questions that they throw up about privacy.

In the Cyber-bullying case of Teggart -v- Teletech UK Ltd, comments were posted on Facebook by an employee about a female colleague (which were reported to her):

"Quick Question, who in Teletech has A not tried to f*%k? She does get around!"

... these were NOT found to have brought the employers reputation into serious disrepute. The subject of the comments complained to the person who made them, but he then just made further lewd and offensive remarks on Facebook. BUT The tribunal agreed with the employer that this employee was harassing a colleague in breach of anti-bullying policies, which justified a gross misconduct dismissal. The Claimant sought to run various arguments under the European Convention on Human Rights - which all failed.


In coming weeks, I will cover other case law examples of Facebook, Twitter and email (mis)usage, to provide guidance on what does and does not constitute employee misconduct on social media and how employers can best anticipate and deal with these issues.

 

For further advice, or to discuss your case, please contact Andrea London.

 

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

 

20 November, 2019
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