Social Media and Misconduct at Work

12 September 2017

Social media plays a huge part in many people’s daily lives, which has inevitably led to the opinions of people becoming public where they were once private. This can cause problems for social media users in many areas of law, but especially in relation to their employment.

If you believe you have been unfairly disciplined or dismissed by your employer following a comment made on social media, you should speak with one of our Employment Solicitors.

Social Media During Working Hours

One common problem that UK employers have faced is their employees using social media platforms during the working day. As a result, some employers may block access to social media sites from within their network. However, if your employer has not blocked access, it does not mean that you are safe to use them during your working hours – many employers now have strict computer and I.T. use policies to prevent their employees being distracted from their work. It is important that you read and understand these policies.

Social Media Use Outside of Working Hours

A significant amount of disciplinary action taken by employers over social media actually arises from the employee’s activity outside of working hours. This could be, for example, posting negative comments about your employer or the work itself. Or it can also be posting comments that, although having nothing to do with your employment, reflect your employer in a negative light.

If your social media profile makes it clear who you work for, you could be inadvertently holding yourself out as a representative of that employer. By posting comments or opinions that could be viewed as negative, the Courts have accepted the view that the employer’s reputation could genuinely be affected as a result. This means that your employer could take disciplinary action against you, including summary dismissal, if they can show a reasonable belief that your comments have lowered their reputation or have breached the trust and confidence they had in you.

Private or Public?

A few employees have tried to argue that their dismissals were not fair because their comments were made on private social media accounts. In some of these cases the accounts were even restricted to a relatively small group of close friends. The majority of these claims have been unsuccessful, with the Courts deciding that by posting on social media platforms, you are deemed to understand that the post may become public, as evidenced by the fact that your employer has seen the post you made.

Arguments have been made against this, including representations relating to the European Convention on Human Rights, specifically referencing freedom of expression and the right to a private and family life. These arguments have been generally dismissed by the Courts by reason that the employer’s right not to suffer a loss of reputation is a justified reason to restrict these rights.

Social Media and Unfair Dismissal

As you may imagine, the law on work related social media misconduct is constantly changing and being tested in the Courts as new forms of social media arise. Consequently, every case needs to be looked at on its individual merits. For example, an employee making a comment which is only seen by 10 people may not be fairly dismissed, whilst a different employee making the same comment which is seen by 100 people could be.

An employer who takes disciplinary action against an employee following comments made on social media still has to follow a fair disciplinary procedure. The onus is on the employer to prove that the comments made have had such an effect (whether by lowering their reputation or destroying the trust between them and the employee) that they are acting reasonably when choosing to dismiss the employee.

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