Image © TarikVision / Adobe Stock
We are in an age when the twin arts of conversation and letter writing have been displaced, if not lost, in favour of online comment and social media posts.
TikTok, Twitter and Facebook are now commonplace destinations for individuals to air their views and grievances against whatever and whomever has upset them. Management, colleagues, customers and the public are often considered legitimate targets.
While cathartic for the creator and entertaining for the viewer, posts, when it comes to the employer, pictures and videos – some of which can amass hundreds of thousands of views – could raise issues regarding privacy and confidentiality, and cast them in a bad light.
So, how can employers seek to rein in unrestrained online expression?
Taking action against employees
In recent years, employment tribunals have had to navigate claims where employees have been dismissed for alleged breaches of their employer’s social media policy – particularly in relation to content posted on their personal social media accounts.
Whether the post in question involves criticism of the employer, derogatory comments about colleagues or potentially offensive views, tribunals have cautioned employers about overreacting to alleged misuse of social media. That is not to say employers can never fairly dismiss an employee in these circumstances – indeed, case law continues to show that they can.
However, in deciding whether a dismissal was fair, a tribunal will consider a number of questions, including the following.
Did the post damage the employer’s reputation?
Case law has established that the mere risk of damage to an employer’s reputation is sufficient to justify dismissal in some cases; in other words, actual harm to the reputation need not be proven. Nevertheless, employers must exercise judgement in assessing the actual existence of such a risk.
In Taylor versus Somerfield Stores, a video emerged showing an employee being struck on the head with a plastic bag filled with other plastic bags while in work uniform. In concern for its reputation, the employer decided to terminate the employee who had shared the video. However, the dismissal was found to be unfair at tribunal.
Several factors contributed to this decision, including the fact the video had received only a limited number of views and the company’s identity was not discernible from the footage. As such, little threat was made to the company’s reputation and the dismissal lacked justification.
Did the dismissal infringe on the employee’s right to privacy?
A key consideration for the courts is whether dismissal infringes on an employee’s right to privacy under article eight of the European Convention of Human Rights (ECHR).
When content is shared in a private or restricted online setting, employees may have a stronger expectation of privacy.
However, not much of social media is actually private. Illustrating this point, in Teggart versus TeleTech, a customer service employee who made obscene comments about the promiscuity of a female colleague on Facebook was found to have been fairly dismissed.
Although his comments did not directly impact the employer’s reputation, the tribunal found they did constitute harassment, which amounted to gross misconduct, thereby justifying the dismissal.
Notably, the employee attempted to argue a violation of his privacy rights under the ECHR; however, since the comments were made publicly, this argument was ultimately rejected. Comments on public pages have repeatedly been found not to be “private” for the purposes of article eight, even if social media settings are set to private, due to the ease in which online posts can be copied and passed on.
Did the dismissal infringe on the employee’s freedom of expression?
Courts will also consider whether a dismissal infringes an employee’s right to freedom of expression under the ECHR when weighed against the employer’s legitimate interests.
Even beliefs that are offensive or shocking may be protected under the ECHR (although, the manner in which they are expressed may be justifiably restricted).
Perhaps the most famous example of this is the case of Maya Forstater – a researcher whose employment was terminated over her view, conveyed through a series of tweets, that transgender women could not change their biological sex. Despite being potentially offensive, her gender-critical beliefs fell within the scope of the ECHR’s protection, and the Employment Appeal Tribunal held that her employer’s decision not to renew her contract was discriminatory. In particular, the Employment Appeal Tribunal concluded that the tweets were simply an expression of Ms Forstater’s belief; they were not objectively unreasonable and not sufficient enough to justify detrimental action by her employer.
This was reinforced by the fact that Ms Forstater had also added a disclaimer to her Twitter profile stating that her views were her own and agreed not to discuss her beliefs in the workplace, which the Employment Appeal Tribunal said made the employer’s response even less proportionate.
Was a clear policy in place?
If a clear policy was in place and the employee failed to follow it, it is more likely that a court will find the dismissal fair. Again, though, the policy should not be too strict in its stipulations or encroach too much on the employee’s private life.
In the case of Crisp versus Apple, an employee was fairly dismissed for posting negative comments about his employer on his private Facebook page. Apple’s social media policy clearly prohibited such actions, and Mr Crisp had also received training, which underscored the importance of presenting oneself positively online.
The training also reiterated that comments made outside of work, which affect the company image, were still covered by company policy. Accordingly, the tribunal ruled that his dismissal was fair.
Each case will turn on its facts. In addition to the previously explained, a tribunal may evaluate factors such as the seriousness of the conduct, the employee’s role and seniority, and any mitigating factors presented by the employee.
Ultimately, whether a dismissal is found to be fair or not will depend on whether it fell within “the range of reasonable responses” open to the employer. That is, did the employer’s decision fall within a spectrum of fair and reasonable actions that a reasonable employer might take in similar circumstances?
Social media is with us to stay, which means that employees need careful management in relation to its use. It should be said that just because employees have rights, it does not mean employers are barred from acting if a serious breach occurs.
However, as cases have illustrated, that action needs to be proportionate and fair given the circumstances.