This article seeks to explore the difficulties employers face in terms of dealing with the conduct of employees on social media sites.

Whilst employees need to maintain a private life, social media blurs the boundaries between private and public life. An employee's behaviour outside of the workplace can, in some cases, be considered relevant to their employer. The recent ACAS report on workplaces and social networking suggests that employers take a simplistic approach when handling employee conduct on social media sites. One of ACAS’s recommendations is given below:

"The policy on internet/social media use need not be complicated - the main message that online conduct should not differ from offline conduct, with reference to existing conduct guidelines, may suffice."

It appears that the content, combined with the size of the audience or potential audience, will be looked at by the Employment Tribunal when it comes to considering these types of cases.

Employers should approach employee’s comments on social media sites carefully taking into account the following.

• Is the content likely to cause harm, and
• will any response or action the employer takes be judged as within the "band of reasonable responses" test.

An example where the Employment Tribunal thought disciplinary action by an employer was "reasonable" can be seen in Preece v Weatherspoons plc ET2104806/10. In this case the employee, Ms Preece, posted derogatory comments on facebook about customers visiting her employer's establishment. Weatherspoons had a detailed social media policy in place which stated that employees should not put anything onto social media sites that could damage the company's reputation. The Employment Tribunal found that Ms Preece was fairly dismissed for the comments and considered that the employer's response was "reasonable". The Tribunal found that although Ms Preece alleged that she had used privacy settings on her facebook account, her comments had gone into the public domain.

This can be compared with the case of Whitham v Club 24 (t/a Ventura) ET/1810462/10. In this case Club 24, the employer, sought to argue that Ms Whitham's comments on her facebook account, which amongst others included, "I think I work in a nursery and I do not mean working with plants", were detrimental to the employer's image and, specifically, that they could affect the employer's relationship with a major client. In this case, Ms Witham's employer did not have a policy directly covering social media. The Tribunal found that her dismissal was unfair because they considered that her comments were relatively mild, she was not a senior employee and her comments were unlikely to affect the company's relationship with its client. The Tribunal considered that the employer should have consulted with the client to determine if they were offended by the comments if that was a real and serious concern.

A further case which highlights the importance of employees understanding the potential audiences of their comments on social media sites is the case of Gosden v Lifeline Project Ltd ET/2802731/2009. In this case the employee, Gosden, worked for Lifeline Project Ltd, who provided services at Moorland Prison. Gosden sent an email to a colleague at Moorland Prison, which contained racist and sexist comments. The email was sent from Gosden's home computer. Gosden was subsequently dismissed. The Tribunal upheld his dismissal, focusing on the inappropriateness of the content and the potential audience. The Tribunal found that the content was likely to be considered offensive by most people. The employee sought to rely on the fact that the email was sent from his home computer and was therefore private; however, the Tribunal disagreed. The email concluded "it is your duty to pass this on". This, the Tribunal said, rendered the email beyond the sender's control. The fact that the email was sent from his home computer was irrelevant. The employer could rely on the fact that this behaviour could bring the employer's company into disrepute. The situation may have been different if the email had not been a "chain email"; however it is possible that the content of the email was so offensive in this case that it would have warranted dismissal in any event.

These cases give employers an indication of how the Tribunal will approach issues relating to employee conduct on social media sites and highlight the benefit of having a clear social media policy in place.

Employers should implement clear policies on the use of social media sites to ensure that employees understand the boundaries of acceptable conduct and are aware that their behaviour could lead to disciplinary action.

For further information on social media policies please contact Rachel Brown on 01277 268365 or rbrown@wortleybyers.co.uk.

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