How to manage the tricky issue of employee social media posts

As always in my super exciting life I spent Monday morning with a coffee reading up on HR updates and recent Tribunal outcomes. A recent judgement regarding use of social media by an employee that involved abusive comments about his line manager caught my eye as an interesting topic for this week’s article, along with a few other cases I have read about that capture most of the salient points about issues employers should be wary of regarding staff use of social media.

I’ll give brief details about some relevant cases, then consider what employers can learn from them and finish the blog with actions employers can take to ensure they manage this effectively.

This approach mirrors what we often do to make 186hr courses that cover dry subjects interesting. We find that telling the story of what happened in a Tribunal case, discussing the outcomes and the reasons for Tribunal decisions, and then agreeing what the organisation can do about it leads to attendees being engaged throughout the course and they certainly find it more interesting than if we laboriously reeled off legal requirements and ACAS Codes of Conduct!

Monday’s case involved an employee who had had a heated argument with his manager. In the argument both individuals made accusations about each other.

On returning home, in his own time and on his own device the employee posted to Facebook ‘I don’t think I have ever felt so low in my life after my boss’s comments today’. Various friends commented, including some reassuring comments but others were abusive towards the line manager, including making discriminatory remarks.

The manager became aware of the comments, held a disciplinary hearing and dismissed the employee for gross misconduct as he asserted that the posts had damaged the reputation of the company and also breached their social media policy. On first glance this would seem to be reasonable.  

The employee raised a tribunal claim for unfair dismissal and explained that his post was pretty inoffensive; he had not commented on any of the posts made by his friends; the manager had not checked whether the posts were publicly available or limited to the employee’s friends only; and the social media policy didn’t actually prevent such comments being made on employees’ social media, and didn’t require them to be removed.

The judge found in the employee’s favour, commenting that the employee cannot control what other people say on social media. He explained that if the employer had asked the employee to remove the comments and he had refused to do so then that may have justified dismissal.

Also the tribunal found that there was no evidence of the organisation’s reputation being damaged apart from with the employee’s friends as the comments were only open to them i.e. it was not publicly available and, thankfully, negative comments outside work but about work between friends are not justification for dismissal or we would all be in trouble for comments we’ve made at some point!

The Tribunal therefore found unfair dismissal and awarded the Claimant just under £30,000. Interestingly this amount included extra compensation due to the fact that it would be harder for the employee to find an alternative job during the pandemic.

In another recent case, Preece was a pub manager for Wetherspoons (not of the pub in the image) who one day had a particularly difficult time with a group of customers, including receiving a number of verbal and physical threats towards her. She asked two customers to leave the pub and they did, but later that day she received abusive phone calls from the daughter of the two customers.

Clearly that is unacceptable and a serious issue. However, whilst still at work, Preece then posted abusive comments about the two customers on Facebook.

The daughter of the customers made a complaint to Wetherspoons, claiming that the comments were offensive and also open to the public.

Preece was invited to a disciplinary hearing on the basis that she had failed to comply with the company’s Internet policy and had lowered the reputation of the organisation due to the comments being publicly visible. She was dismissed.

Preece claimed unfair dismissal at tribunal on the basis that the decision to dismiss her was not within the band of reasonable responses of an employer.

Preece was aware of Wetherspoons’ email and internet policy (indeed, she had signed a copy). Also, although she thought her comments were only visible to a limited number of friends and she said that had been her intention, they were actually in the public domain.

The tribunal found that Preece had used Facebook whilst at work which was against policy, had made abusive and offensive comments towards the customers which led to them being identified publicly by name, and therefore rejected her claim. They found that she had brought the company into disrepute by her comments and her dismissal was therefore fair.

Clearly in this example Wetherspoons’ case was made stronger because it had a clear policy on email and internet usage that Preece had signed to say she had received and read a copy. Preece was aware of what was required, and had breached those standards.

In Whitham-v-club-24-ta-ventura, during a difficult day at work Whitham posted some comments on Facebook complaining about her colleagues, saying that she felt as if she worked ‘in a nursery’ although she did not mention any colleagues by name.

Her post resulted in other comments being posted by colleagues in response.

Whittam had privacy settings on her Facebook account which meant that only her friends could see her posts, and no other user or member of the public had access to her comments.

Her line manager was told about the posts and investigated as he took the view that they were unacceptable. So far so good!

Whitham apologised profusely but was suspended and then dismissed following a disciplinary hearing for causing ‘extreme embarrassment’ to the organisation and for putting the organisation’s relationship with Volkswagen Group, their primary customer, at risk. Whitham appealed, but the dismissal was upheld.

The company justified their decision by referring to their policies that clearly explained that the employee’s obligation of confidentiality extended outside of the workplace and that posting information on social media sites could be a breach of confidentiality.

Whittam claimed unfair dismissal at tribunal and won. The tribunal found that the comments made were relatively mild, they did not name anyone and were not publicly available, they were not specifically about Volkswagen and they did not include any confidential information. It also concluded that Whitham was a relatively junior employee and it was unlikely that her comments could damage the commercial relationship with Volkswagen.

The above 3 cases concern disputes between employee and employer following Facebook comments made. The next case concerns the principle of vicarious liability i.e. that employers are often responsible for the acts of their employees.

An employee of Somali origin (not the person in the image) argued with some of her colleagues and later accessed the computer files of one of them. Clearly that raises the issue of how she knew their login details which, bizarrely still seems to be quite common in the workplace but I won’t go down that particular rabbit hole in this article.

When she opened the content of a Whatsapp group that included several colleagues and her line manager she saw several comments about her that were overtly discriminatory about her and her religion e.g. regarding the hijab. They also included threats of violence towards her.

She took a screenshot of the chat – as she also did a few days later when she logged in again and found further comments on the Whatsapp group that had been added to the chat.

She reported what she had found to HR, who sent the screenshots to the CEO.

The CEO acted quickly, met with the Claimant and moved her to a different department while he investigated (although this was not commented on in the tribunal summary, as per my previous posts please remember that as a matter of principle if anyone is moved during a disciplinary investigation it should normally be the alleged perpetrators not the victim).

Following an investigation the CEO held disciplinary hearings and issued a final written warning to the manager but dismissed the other employees, who were still in their probation period.

The Claimant had also reported discriminatory comments in the initial argument in her complaint but the CEO refused to investigate these, saying it would simply be one person’s word against another.

The employee resigned and claimed unfair dismissal and racial harassment at tribunal. Unsurprisingly the tribunal found that the Whatsapp content had breached the Equality Act 2010. Even though individual employees had made the racist comments in a closed Whatsapp group that did not protect them on this occasion and the employer was held vicariously liable for the comments.

The tribunal found that the employer had not done enough to either prevent the discrimination in the first place through training etc or following as, even though the Claimant was moved to a different department she was still required to have regular contact with the manager.

Damages have either not been disclosed or not decided yet but we can be sure they are significant.

The final case I’d like to share considers whether discriminatory comments posted outside work had occurred ‘in the course of employment’ in which case the employer would be held liable. This is often disputed by employers. It is so hard to control what employees say and do when they are not in work, especially if alcohol is involved.

The case involved a security officer at Heathrow airport who posted a racist image of the Claimant on her private Facebook account i.e. it was a private post to friends rather than a public post.

 A colleague who was friends on Facebook with the security officer showed it to the Claimant, who raised a grievance. The employer investigated, held a disciplinary hearing and the employee who posted the image received a final written warning.

The Claimant was not happy with this outcome and raised a claim at tribunal, claiming damages for racial harassment against the employer.

However, the Tribunal found that the employer was not vicariously liable as the act had not occurred ‘in the course of employment’. This was based on the fact that although the image was from one employee about another employee, it was posted outside work, on a personal device. Also, crucially it seems based on this and other cases, the Facebook post was private and not open to the public to see. Also it did not make any reference to the employer and the employer was not easily identified from the posts so they were not held to be vicariously liable.

One final area to consider, although there have not been any relevant tribunal cases about this yet apart from the not overly useful Whitmar Publications Ltd v Gamage, is the use of business contacts that have been developed during employment, after an employee has left the company.

The above case doesn’t help too much because Gamage was so brazen in its approach employers are unlikely to come across similar circumstances. Briefly, a group of employees left their employer to set up on their own business and literally hijacked the company LinkedIn login details and used them to poach customers to their new business. Unsurprisingly the Tribunal ruled against them but the company was fortunate to achieve this in some ways as it had not issued contracts of employment or restrictive covenants to the employees and had no social media policy. Fortunately for the company the employees were so blatant in their actions the company were able to rely on the implied duty of ‘good faith and fidelity’ that is assumed to be included in all contracts to act, but you really wouldn’t want to have to rely on that.

As you may have read, the government is currently consulting regarding relaxing the terms of restrictive covenants so we will need to see where that leaves employers in terms of former employees contacting customers, staff etc. after they have left, whether by social media or other means.

Employees are increasingly using social media sites such as LinkedIn to connect with existing and potential clients, suppliers etc in work and there are clear benefits to their employers in this while they remain in employment. But what happens after their employment ends?

As covered above, there has been little guidance from the courts on this. Employers clearly need to protect their business through well worded policies, employment contracts and restrictive covenants where relevant. These are discussed in more detail below.

What can employers learn from these cases?

From the above cases the issues for employers to consider are:

• Tribunals seem to accept that social media posts within a closed group i.e. not accessible by the general public, are on most occasions the equivalent of private conversations and are unlikely to justify dismissal for bringing the company into disrepute, although if the content breaches policies such as discrimination they can be used as evidence in disciplinary hearings.
• Even comments or images on social media that are publicly available do not always justify dismissing an employee for bringing the organisation into disrepute. There would need to be evidence of this or at least the likelihood of it happening. The above cases show that the employee needs to be senior enough, or the offence serious enough, to warrant such action.
• Employers should ask employees to remove social media content if it finds them offensive, especially if they are not able to take disciplinary action regarding the offensive posts if they were not deemed to be made ‘in the course of employment’. This would then likely be classed as a ‘reasonable management instruction’ so further action can be taken if the employee refuses. Hopefully this will at least limit any potential damage to the employer.
• When deciding the outcome of disciplinary action for social media breaches, employers should consider whether the offending content was generally available or only to a closed group. This may affect the outcome as offensive content in a closed group and any potential damage caused is likely to be very limited.
• If the employer is going to justify their actions by claiming damage of reputation they need to be able to show that either has happened or may reasonably have happened.
• Employers need to train employees on discrimination. This will bring many benefits to the organisation including helping the defence of a tribunal claim.
• A lot seems to hinge on the employer’s social media policy. Employers should therefore have clear policies that cover all scenarios where they would wish to act, and then follow them.
• Employers also need well worded employment contracts and restrictive covenants as they may need to rely on these in disciplinary hearings and legal proceedings.

Further points for employers to bear in mind

Although not covered by the above cases, employers should also consider the following:

• All employees have a right to respect for private and family life, home and correspondence under Article 8 of the European Convention on Human Rights (ECHR). This is one of several reasons why having a clear policy is so important, to make clear what monitoring will take place, how any findings will be used, and what potential action may be taken.
• Certain roles such as police, solicitors and teachers have a higher level of responsibility with regards to standards in general and are required to act in accordance with certain professional standards. This would include their use of social media.

What should employers do?

The employer should ensure there is a robust and comprehensive Social Media policy, BYOD Policy and Employment Contracts, including restrictive covenants where relevant. They should also train employees on diversity and inclusion. We cover these in a bit more detail below:

Social media policy

It is important to have a policy that clearly explains how employees should act when using social media. Areas to include in such a policy are:

• Scope of the policy and its aims, including why it is needed and what it is designed to achieve along with who must abide by it. Often companies also include some general principles here such as the need to be respectful and how this policy fits with other company policies.
• Terms of use including who owns the policy, appropriate usage, and a clear explanation of what it must not be used for e.g. bullying or discriminatory comments, comments must not bring the company into disrepute etc. It should also make reference to what action the company will take if employees do not follow it, although this is covered in more detail later.
• How social media will be used for recruitment purposes and what will happen with any data processed during recruitment.
• Clear explanation that any business contacts obtained whilst working for the employer are the property of the company and must be removed from any individual’s social media on leaving the organisation
• Policy enforcement, such as the consequences of any breaches of policy rules, including summary dismissal for serious breaches that are considered to be gross misconduct. This section should also include details of any monitoring of individuals’ social media accounts used on work devices, and the terms by which the employer may check any personal devices.

Bring Your Own Device (BYOD) Policy

You may wish to include this in the general IT and Internet policy or have a stand alone document. It should make clear the terms by which employees may use personal devices such as Smartphones and laptops whilst in the workplace, especially when connected to the company’s internet. The policy should also include the following:

• The use of business applications away from the office but on personal devices.
• Security requirements on the devices.
• The need to protect personal data and to manage it in line with GDPR requirements.
• (Un)acceptable use whilst connected to the company’s VPN.
• A link to the company’s IT and Internet policy and any other relevant policies such as the Social Media Policy that the individual must adhere to.
• The requirement not to use the device whilst driving for any work related actions.
• An explanation of what monitoring the company may require, and circumstances in which the company may wish to investigate specific items on the device even though it is owned by the employee.

186hr can supply numerous policies including Social Media and BYOD. All are approved by CIPD and cost £100 plus vat. Alternatively we can put together a comprehensive employee handbook from £500. Please contact us for further details.

Employment Contract

Where relevant the above policies and requirements should be referred to in the employment contract, although it should be made clear that the policies are non-contractual for the reasons stated in previous articles.

Employers should include restrictive covenants in the employment contract where relevant to prevent employees attempting to poach customers or staff via social media or any other means when they leave.

186hr can supply comprehensive, legally compliant employment contracts specific to the organisation for £500 plus vat including restrictive covenants if required. Please contact us for further details

Train employees on discrimination

Employers are often held vicariously liable for the actions of their employees and when there is a case of racial, sexual etc harassment one of the first questions asked is what training employees have received in such matters.

Therefore, in addition to the many other benefits of training employees in avoiding acting in a discriminatory manner, doing so is likely to significantly help the employer’s defence of allegations of discrimination by employees.

At 186hr we are experts in, and passionate about, training in diversity and inclusion. If you would like further details e.g. on our highly acclaimed ‘Dignity and Respect in the Workplace’ or ‘Diversity Awareness’ courses please see our Training page or Contact us.