In today’s online society, social media can be used to change a company’s reputation for better or for worse. It is therefore important that companies are aware of how to deal with employees’ online comments, particularly where these may negatively impact the reputation of the business or upset fellow colleagues.
This issue was central in Smith v Trafford Housing Trust, where an employee was demoted for posting a Facebook status linking a news article headed "Gay church ‘marriages’ set to get the go ahead," alongside his own caption, "an equality too far". Among Mr Smith’s facebook friends were 45 work colleagues, including at least one who was offended by these comments and who complained to the Trust. He was subsequently demoted, with the Trust arguing that as Mr. Smith’s profile identified him as one of its managers and that he was in breach of both the Trust’s employee code of conduct and its equal opportunity policy. The court held that this amounted to a dismissal. The judge gave significant weight to the fact that Mr. Smith’s remarks were not offensive or connected with his work, and so the possibility of his remarks damaging his employer’s reputation was remote.
By contrast, in Crisp v Apple Retail, where Mr. Crisp made several Facebook posts criticising Apple products and his job, the court recognised that there was a significant risk of these posts impacting negatively on Apple’s reputation, and so held that the dismissal was fair. Whitham v Club 24 Ltd also reinforced the idea that an employer may need to make efforts to assess the potential damage caused by the employee’s online comments. A business considering dismissing an employee over use of social media should therefore seriously consider how likely it is that the online behaviour will damage the business’s reputation. If the risk is only slight, then disciplinary procedures that stop short of dismissal may be more appropriate. A second critical difference between the Smith and Crisp cases is the difference in clarity of the guidelines imposed on the employees. The Trust had only a vague statement of values, whereas Apple had incorporated social media into its employee training and issued detailed guidelines on acceptable behaviour for employees. This meant that the employee had been made well aware that his conduct could result in dismissal, which the judge found to be very influential when deciding the case. This illustrates the importance for employers to have a Social Media Policy which clearly sets boundaries for their employees on what is and isn't acceptable conduct when using social media.
Employers also need to take steps to actively communicate these policies to all employees. In conclusion, an employer should ensure that:
- they follow established fair dismissal procedure,
- that they have clear social media guidelines in place,
- and that dismissal is only resorted to when the employee’s online comments have a genuine risk of damaging the employer’s reputation.
Although at first glance Smith appears to tip the balance of the law in favour of the employee, viewed within the context of existing case law an employer following the above recommendations should not be unduly concerned, despite the headlines these cases attract.
If you would like to discuss social media and employment law, please contact a member of the team.