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#employeefail or #unfairdismissal?

I can hardly pick up a newspaper at the moment without reading about workplace social media mishaps.  This week, I’ve learnt about a disgruntled gastropub worker who used Twitter and Facebook to launch an expletive tirade against the business, a journalist who is suing his former employer newspaper for dismissing him after pornographic photos appeared of him online and discovered that over 800 police officers have been investigated for breaching social media guidelines in the past five years.

A few months ago my colleague Rebecca Heyworth uploaded a Top 10 Social Media Do’s and Don’ts for employers and I would recommend anyone who is concerned about social media issues in the workplace to read it.  

Based on my understanding of the (very inconsistent) Tribunal case law and of advising clients on these issues, I would just flag the following points about social media and the workplace:

  1. Put in place a social media policy which is regularly updated and train your staff on your expectations of them.  Let’s face it – if social media issues are important enough for you to dismiss an employee because of their actions online, they’re probably important enough for you to devote some time and effort communicating your expectations. 
  2. Remember that attitudes to social media, and technology in general, can vary enormously.  Sometimes it is the key decision makers in organisation who know the least about such issues.  Any approach to social media in the workplace has to be relevant to both the senior manager who knows something about “the Facebook” that their children/grandchildren use and the new recruit who may not remember a time before you could communicate your every thought to the world wide web.
  3. Before taking any action against an employee for social media misdemeanours, think carefully about why you are doing so and the potential damage (if any) the employee’s actions have had on the organisation.  It appears from the case law that dismissing employees for “bringing an organisation into disrepute” seems to be a particular favourite for employers – and has been relied upon by the aforementioned newspaper as the reason for dismissal of its journalist.  In such circumstances, a tribunal will want evidence that the employer has assessed the level of risk and that the employee has or could have brought the employer into disrepute. 

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