Social media presents a significant and growing risk to organisations. Many ill-considered postings on Facebook, Twitter and YouTube have led to reputational damage and embarrassment for employers, and disciplinary action and even dismissal for the employees involved.
The latest example to bring these issues to the fore is the saga of Coronation Street actor Marc Anwar, who was axed by ITV for posting allegedly racially offensive tweets.
Given the particular facts of Anwar's situation – a TV soap star accused of using racially offensive language on a public platform seen by thousands – the television company’s course of action is not surprising. However, it does raise wider questions; for example, would dismissal have been a reasonable response if an employee’s social media content was not so easily traced back to the employer, or was not as obviously damaging to an employer’s reputation?
When dealing with an embarrassing issue on social media, employers are challenged with balancing employees’ rights to privacy and freedom of expression against the organisation’s need to protect its business interests and reputation.
Case law is not well developed in this area, but a few key cases exist that can guide employers faced with employees’ social media misconduct. In Taylor v Somerfield Stores (2007), an employee was found to have been unfairly dismissed after posting a video clip on YouTube of employees misbehaving at work. The employer argued that uploading the clip had brought its business into disrepute, but an employment tribunal found there was no clear association between the employer and the clip and, even if there was, it had only been viewed eight times.
In another case, Teggart v TeleTech UK (2012), an employee posted vulgar comments about a female colleague on his Facebook page. While the tribunal decided the comments did not bring the employer into disrepute, it held the post did amount to harassment, justifying dismissal for gross misconduct.
The Employment Appeal Tribunal (EAT) held in the case Game Retail v Laws (2015) that an employee’s offensive tweets could not be considered private, although the EAT was reluctant to give general guidance on the issue, due to the fact-sensitive nature of social media cases. The tribunal had little sympathy for the argument that the employee had a reasonable expectation of privacy while using a public social media platform.
The EAT has also held that, while freedom of expression is relevant in these cases, the employer’s interference with this right could be justified in view of the risk of damage to the business. This can be contrasted with an earlier case, Smith v Trafford Housing Trust, involving a housing manager who posted comments on his private Facebook wall indicating his opposition to gay marriage. In that case, the High Court held that his employer had breached his contract by disciplining him over his posts, which were clearly being made in a private capacity and highly unlikely to bring the housing association into disrepute.
While HR and PR departments may wish that staff would refrain from taking any controversial stances on public forums, as they can harm an organisation's reputation, any incident that does come to light should be met with a proportionate response. Faced with an employee’s embarrassing and undesirable public comments, employers should consider the reach of the social media post, as well as the level of 'link-back' to the organisation, before initiating disciplinary action.
However, incidence of social media bullying should be taken seriously. Even without a large viewing platform, an employee’s behaviour on social media may well amount to gross misconduct where there is a sufficient connection to the workplace – for example, if a work colleague raises a bullying complaint.
Of course, it would be better for both an organisation and its employees if these issues never arose. Although a complex balancing act, there are steps that employers can take to reduce the risk of employees making inappropriate use of social media. As a minimum, organisations should introduce a social media policy, train staff on the content of that policy, ensure it is kept up-to-date, and put it in to practice.
It is crucial to make it abundantly clear to employees that any comments on social media which affect the organisation may result in disciplinary action. By making it obvious that social media misconduct will be taken seriously, hopefully staff will remember to think before they post.