The past few weeks have seen numerous cases of employees risking their jobs over their social media activities. Where do employers stand when considering whether to dismiss an employee for their actions on social media? Patrick Kilgallon and Tania Goodman explain.
Few can have escaped the barrage of racist abuse faced by England football players on social media earlier this month, or some of the consequences that followed.
One such account belonged to a manager who worked for a well-known property company, who was suspended after his racist tweet following England’s defeat to Italy. Also this month, an estate agent whose harassment of chief medical officer Chris Whitty was documented in a video on social media was dismissed by his employer.
Considering these recent events, it is useful to re-examine when an employer can dismiss an employee for their actions on social media, and where any risks might lie.
The starting position for an employer when considering whether to terminate an employee’s contract because of their social media transgressions is to look at the employee’s length of service in order to rule out a potential unfair dismissal claim.
This is the most common claim pursued by employees in tribunals. Generally, unless an employee has two years’ continuous service they will not be able to bring a claim for unfair dismissal. Therefore, an employer is normally be able to terminate the employment contract, providing they comply with its terms (such as the employee working out their notice period or making a payment in lieu).
Failure to dismiss without honouring the notice period is likely to give rise to an action of wrongful dismissal, unless the employee has committed gross misconduct.
If the employee in question has more than two years’ service, employers would have to establish that the reason for termination fell into one of the five prescribed categories: capability; conduct; redundancy; illegality; or some other substantial reason. For a social media incident, the relevant category is likely to be conduct.
An employee can potentially be fairly dismissed for misconduct or gross misconduct. The importance of the distinction between the two labels is that a dismissal for misconduct is on full notice, whereas a dismissal for gross misconduct entitles the employer to terminate without notice or a payment in lieu.
Further, to dismiss an employee fairly for a lesser charge of misconduct, it is usual for the employer to have given the employee previous warnings. If the employee has committed a sufficiently serious breach for the conduct to be deemed gross misconduct, there need not be a history of warnings.
Employees sometimes labour under the misapprehension that if their misconduct is not in an office environment or takes place away from the work setting, that they are safe from employment-related repercussions.
This is not necessarily true if the conduct outside the workplace affects the employee, or could be thought to affect the employee when doing their work.
The main route an employer can use to dismiss an employee if they have posted abusive online content, is that the conduct could damage the employer’s reputation.
In Crisp v Apple Retail, the tribunal found that a dismissal of an employee for comments on Facebook was fair.
Employees sometimes labour under the misapprehension that if their misconduct is not in an office environment or takes place away from the work setting, that they are safe from employment-related repercussions.”
The particular point of interest in this case was the focus the ET place upon Apple’s clear policies and training materials that set out the importance of protecting its image and that it was a ‘core value’. Moreover, Apple had drawn attention to the fact that making derogatory comments on social media was likely to constitute gross misconduct.
As employees’ use of social media continues to grow, it would be prudent for employers to review their policies on conduct and disciplinary procedures. There should be a detailed list of forms of conduct that they consider to be gross misconduct whilst making it clear that the list is not exhaustive. This will put employers in a stronger position to take action should issues arise.
Don’t act in haste
Employers should not act too hastily in response to the potential wave of online criticism due to the employee’s actions, however.
This is demonstrated in the case of Keable v London Borough of Hammersmith and Fulham. A rally took place concerning anti-Semitism in the Labour Party and the employee attended a counterdemonstration, expressing controversial views that the Zionist movement collaborated with the Nazis.
This was filmed and shared by a BBC journalist on Twitter. The employee was dismissed and brought a claim. The ET found that the employee had been unfairly dismissed as he was expressing political views in a lawful way, even though those views were likely to cause offence.
It is worthwhile for employers to remember that lengthy ET disputes are not only costly but can also result in reputational damage – usually the very thing they are seeking to mitigate.
This is particularly salient in relation to social media, which by its very nature encourages polarised opinions that could cause employers to feel under pressure.
Employers must take a breath if issues arise outside of work and approach the matter cautiously, follow the procedure laid down in their policies, and obtain legal advice.