Andrew Brown, associate at Anderson Strathern LLP
"... the whoring and drinking shall recommence" were reportedly the words of a barrister on facebook welcoming the end of a court case. He was subsequently disbarred (for, amongst other matters, his facebook postings).
A teacher in Wales was reprimanded for postings found on her facebook site, including one in which she reportedly: "freely discusses her favourite pupils talks about the best site to buy sex toys, her sexual preferences and talks about alcohol with an 11-year-old".
MP Diane Abbott's tweet last month is an extremely high profile example of the ill thought out tweet.(''White people love playing 'divide & rule'. We should not play their game.")
Social media is now widely regarded as a useful business tool. However, an ill conceived comment can become widespread news in a matter of minutes after Tweet or Send is hit. Employers are then left to deflect adverse publicity.
An employers potential exposure goes beyond mere adverse publicity. Many comments, such as that of Diane Abbott, may amount to unlawful harassment. An employer can be held vicariously liable for unlawful harassment by its employees where there is a sufficient link between that harassment and the employees work. This can be the case even where the employee is not tweeting or posting on behalf of their employer.
What can and should employers do? Cyber bullying and harassment is increasingly common. Employers may defend themselves by arguing that they have taken reasonable steps to prevent it.
The first step is to have appropriate policies in place. Such policies include both policies on equal opportunities and on social media. Many employers simply prohibit employees from referring to their work in social media, but that is not always practical or necessary. A policy which clearly set out employees obligations and what is and is not acceptable is sufficient.
Beware; simply having a policy is not enough. The policy must be well communicated. Ideally managers should be trained in it. The most crucial factor is that any breaches of the policy are acted upon and dealt with. Paying lip service is worthless.
Even where an employer has no policy,some behaviours are likely to be so blatantly inappropriate that disciplinary proceedings can be brought. This is the case even where there is no reference to the employer, customers or colleagues.
Employees often plead their human right to a private life in their defence. This only extends so far. An employer may be justified in"interfering" with an employee's private life in certain circumstances. For example, in 2008 a prison officer was fairly dismissed after a photo was uploaded of him indulging in sadomasochistic activities. He did not upload the photo and he was wearing a mask. Nonetheless his employer was alerted to it and his dismissal was justified because, while this was in his private life, it was deemed inappropriate given the nature of his job (working with sex offenders).
What if there is no harassment or unlawful discrimination, but the behaviour affects the business reputation? Businesses should think carefully before adopting the knee-jerk reaction that the business has been brought into disrepute. In the case of Taylor v Somerfield, an employee was dismissed by Somerfield after posting footage on Youtube of himself and his colleagues hitting each other over the head with plastic bags. The Tribunal held that the dismissal was unfair; it was influenced by the fact that there had been only eight hits on the site and no discernible loss to the business. In the absence of a clear breach of policy, genuine disrepute is likely to be necessary before a dismissal is fair.
Policies must also address the other dangers of social media to business such as loss of productivity and disclosure of confidential information. It is lawful to monitor an employees use of the business IT equipment to ensure compliance with its policies and detect abuse.
Employers may wish to head the risks off at the pass. It is not unlawful for an employer to view individuals' blogs etc when making recruitment decisions and indeed this is increasingly common. However, if the blog discloses the individual's religion or belief for example, an employee who is aware of the employers research may be able to assert that the reason for not recruiting them was related to that. In the absence of an alternative explanation individuals may have a claim for discrimination. Employers should therefore clearly document what it is that they found to be objectionable and ensure that their decisions do not amount to unlawful discrimination.
The message to employers is clear: social media undoubtedly represents an opportunity to develop business. However, unless the risks are identified, communicated,and dealt with proactively, the business may fall flat on its face(book).
Andrew Brown is an Associate in Anderson Strathern LLPs Employment and Pensions Unit. He acts for employers and employees alike in all aspects of employment law.