Protecting your reputation
How should employers address the threats posed by social networking sites? Lawyer Siobhan Fitzgerald explains
The use of social media has increased dramatically over the last few years and it is now common for both employees and employers to use it for personal and professional purposes at work and in their own time.
The concern for employers is that websites such as Facebook, Twitter, LinkedIn, Google Plus, YouTube, Bebo, FlickR, FourSquare and MySpace potentially give employees a platform to post defamatory, discriminatory or otherwise damaging comments.
So what power does an employer in the housing industry have when they find an employee may be causing reputational damage to the company or its stakeholders?
Online comments or disclosures may warrant disciplinary action ranging from verbal warnings to summary dismissal. In one case a Wetherspoons pub manager was fairly dismissed for having a long expletive-ridden discourse on Facebook about some customers that had been arguing with her. Wetherspoons was clearly identifiable, the actions were in direct contravention of an IT policy and the comments were posted during work hours and were extensive involving several of her Facebook friends.
However, an employer who misjudges the appropriate action could find themselves being subject to successful claims for unfair dismissal. In a recent case an Asda employee was dismissed after making comments on Facebook that she wanted to hit the customers with a pickaxe. Employees had previously been warned that inappropriate online comments would be treated as misconduct and there was a formal policy in place. The dismissal was found to be unfair because, in the circumstances, the comments were not deemed to be sufficiently serious to amount to gross misconduct.
How can employers protect themselves?
The usual principles of reasonableness will apply to any disciplinary action arising from an employee’s online activities. However, it will be helpful for both parties if an employer can point to a particular policy which the employee has breached.
To establish fairness in a conduct dismissal case, an employer must be able to establish that, at the time of dismissal, after undertaking a reasonable investigation, it believed the employee to be guilty of misconduct and had reasonable grounds for that belief. The employment tribunal must also be satisfied that a reasonable employer would have dismissed the employee in the given circumstances.
For derogatory comments at the milder end of the scale, the case above shows that employers should consider whether formal warnings would be sufficient rather than dismissal.
The best way employers can protect themselves is by putting in place clear policies that are updated regularly to reflect changes in technology and practice. These should be clearly communicated to employees along with guidelines for what is and is not acceptable with specific examples. Employees should be made aware that breach of the policies could result in disciplinary action up to and including dismissal. In composing policies, employers should identify key risk areas specific to their business. For example:
- How important is reputation? Is the type of business particularly sensitive to public opinion and trust? For many employers in the housing industry this will be the case.
- Are certain contracts or clients confidential? If so, make this clear to employees.
By having effective policies in place, employers in the housing industry can also reduce the risk that they are found liable for the discriminatory acts of their employees. Consequently they will have a better chance of defending a claim on the basis that they took all reasonable steps to prevent the employee from doing the discriminatory act.
For more information please contact Siobhan Fitzgerald on 0117 917 8486. Siobhan is an experienced employment lawyer at national law firm TLT. Visit www.TLTsolicitors.com