Using social media for business

What your staff say about your business on social media can affect its reputation. But what can you do if disaffected employees post derogatory comments on personal Facebook pages or Twitter accounts in their own time? The Employment Appeal Tribunal (EAT) decided recently that an employee who posted negative and abusive comments on a social media site was fairly dismissed. But the case highlighted the challenges employers face where employees’ postings – often made with little thought – may instantly receive wide public exposure. In the recent case of British Waterways Board v Smith, the employee, Mr Smith, had made offensive comments about colleagues on his personal Facebook page. He also indicated that he had drunk alcohol during a week he was on standby, which was not allowed, although he later denied he had actually done so. BW had a social media policy that expressly forbade “any action on the internet which might embarrass or discredit BW (including defamation of third parties, for example, by posting comments on bulletin boards or chat rooms)”. The disciplinary hearing found that the remarks could have undermined the confidence that other employees and the public had in BW, and that Mr Smith’s breach of the social media policy, as well as apparently being under the influence of alcohol, amounted to gross misconduct, meriting dismissal. Mr Smith claimed he had been unfairly dismissed. The EAT clarified that Facebook postings by employees made on personal computers could result in disciplinary action if they mentioned their employer or their work. This case and the earlier EAT decision in Game Retail Ltd v Laws confirm that the normal legal principles of unfair dismissal apply to cases involving social media, and whether a particular dismissal is fair will depend on the facts. Relevant considerations include the nature and seriousness of the alleged misuse and any actual or potential damage to the employer’s business. But the most important factor will be whether the employer had a social media policy that its staff were aware of. Such a policy should set out clear guidelines to employees on what they can and cannot say about the organisation and be cross-referenced to its bullying and harassment policy. It could helpfully include examples of unacceptable conduct and the penalties that might be imposed. Employers should review their policy frequently as social media evolves. Please contact us if you would like advice on formulating a policy.   T: 020 7376 9333 E: info@figurit.com    

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