Social media is increasingly being used by employers to investigate the misconduct of their employees, as well as justifying disciplinary action. But how far can employers go and what are the limits? Tony Hyams-Parish, Employment Partner at DMH Stallard considers some practical and legal issues gained from his own experience of assisting clients.
Consider this scenario. Melanie works as Cabin Crew for an airline. After a difficult flight she goes home and posts a tweet which says: “That's why I hate my work. It’s not my colleagues but it’s the passenger that ruin it…nasty horrible human beings" and "on standby tonight so only going to get half drunk lol” There is no mention of the name of the airline.
Then there is Chris who is a part-time employee at a high street retailer who posted on his Facebook page about his employer, stating that an area manager, whom he had never met, was “apparently a ***t".
And finally, Richard works in the customer service team for a major bank, has been ill for two weeks with a virus. He is complaining of vomiting and diarrhoea. It is Monday and he is still unwell but there are pictures of him on Instagram and Facebook at a music festival, seemingly having a good time, drinking alcohol and looking surprisingly good in the circumstances.
These examples are fairly representative of the problems hitting the desks of clients on an increasingly regular basis and illustrate the challenges faced by them. Arguably new approaches are needed to tackle the problem but such approaches do not come without their own complexities.
The increase in social media use
Prior to the explosion in the use of social media, employers would have been completely ignorant of comments their employees were making about their day at work. After all, haven’t most people gone home and had a moan about work at some stage or discussed how bad a particular manager has been?
If someone reports in sick, employers take sick notes at face value and generally assume that someone really is sick; indeed, they haven’t previously been able to prove the contrary, unless someone is unlucky enough to have taken the opportunity to go to Wimbledon on a sick day and be captured on the TV highlights thoroughly enjoying himself on Centre Court.
Frequently, we are seeing such posts being brought to the attention of employers via colleagues who are friends and/or followers of the employee on social media. Many such posts are forwarded to the employer anonymously whilst some employees forget that their managers are “friends” on Facebook, or they didn’t “unfriend” a colleague when they were promoted to their manager!
The social media profiles of many employees appear to be open to the world – perhaps more open than they would like – despite the availability of privacy settings to prevent some information being so readily available. Importantly, many appear to assume that social media is their own private business which can be kept completely separate to their work life. Sadly, that is a dangerous assumption to make. As LinkedIn is increasingly being used by employers to consider new recruits, alongside the standard recruitment process, so are other forms of social media being used as one of the first places to go to catch employees out. Social media can be used to check what an employee is saying, what they are doing on a particular day and even their geographical location on a particular day and time.
There are a range of useful ways social media can be used. I once attended a Case Management Discussion at an Employment Tribunal to find that the Claimant, who was supposed to have attended, called in to say that his child carers had let him down at the last minute. Before Facebook, the case would have been adjourned, at huge expense, and no one would have known any different. The problem for this person was that he had posted on his Facebook page that he had no intention of attending. Here, social media had even been useful in obtaining a cost award against the Claimant for a sum in excess of £2,000.
Barriers and limits
So, what are the limits on the extent to which an employer can use this information for work purposes? Here are some of the issues employers need to consider.
There is no data privacy law in the UK which specifically governs monitoring employees or other workers. Employers are therefore neither expressly permitted to monitor, nor are they prohibited from doing so. Instead, as the various methods of monitoring have developed over recent years, so has the regulatory framework governing their use. Article 8 of the European Convention on Human Rights, as incorporated into UK law by the Human Rights Act 1998 (HRA), provides individuals with the right to respect for private and family life and correspondence. However, this largely only protects public sector employees, albeit the Employment Tribunal must consider all legislation (even in cases involving private sector employers) in a manner that is consistent with convention rights and those under the HRA.
There is a difference between using evidence from social media profiles and routinely monitoring social media profiles of employees, the latter being more difficult to justify. An employer proposing to systematically monitor social media profiles should undertake a thorough impact assessment and decide whether monitoring is proportionate and justified. Legal advice should always be sought in order to ensure that such activity does not also breach laws that exist such as the Regulation of Investigatory Powers Act 2000 (RIPA 2000) which I haven’t included here.
(c) Data protection
Collecting evidence from social media creates a further category of personal data about employees. Whilst the new GDPR rules do not significantly change the governance of employee monitoring, there are several provisions which employers need to consider, such as whether the privacy notice needs to expressly refer to social media, whether a data privacy impact assessment needs to be completed, the legal ground used for processing etc. Otherwise there is nothing in the GDPR that prevents an employee’s social media profile being used against them.
(d) Unfair dismissal
Fair dismissals are ones that fall within a band of reasonable responses and are based on a fair process and reasonable investigation of the facts. The one issue that employers need to be very careful about is relying too heavily on damage to reputation. There are many traps waiting for employers here and advice should be taken before relying on social media comments as the basis for dismissal. Comments need to be looked at objectively to assess such matters as the type of damage caused to reputation and whether it is real, the seriousness of the misconduct and whether it is reasonable to dismiss. To illustrate the care that needs to be taken here are some examples:
Walters v Asda Stores Ltd
An employee was alleged to have posted comments on her Facebook site, which included "even though I'm supposed to love our customers hitting them in the back of the head with a pic axe [sic] would make me feel far more happier heheh". She denied posting the comments and argued that her account had been hacked.
Decision: Dismissal unfair. The comments constituted misconduct rather than gross misconduct. They fell into the "misconduct" category within the examples given in the employer's internet policy, and that policy did not specify that such conduct by managers would be viewed more seriously. The policy had not been published at the time of the disciplinary hearing although it had been published by the time of the appeal. The employee had an exemplary disciplinary record over 10 years' service with no previous warnings.
Blue v Food Standards Agency
An employee took part in a Facebook conversation with two employees who had been dismissed from an abattoir that he inspected. During the conversation, he "liked" a comment about his manager being attacked with a chair.
Decision: Dismissal was unfair. The tribunal found that the reasons given for dismissal (that Mr Blue had damaged the relationship of trust and confidence and had brought the organisation into disrepute) were disingenuous. There was no evidence of any lasting reputational damage from the incident (beyond the initial angry reaction of the abattoir's management), and there were no reasonable grounds for believing that trust and confidence had broken down.
Trasler v B&Q
An employee posted on Facebook that "this place of work is beyond a *****g joke" and that he would soon be "doing some busking".
Decision: Dismissal was unfair. A tribunal held that it was unreasonable for the employer to conclude that these comments were a threat to the business, and the relationship between employer and employee was not so undermined that dismissal was necessary.
However, because the claimant had made the comments and had shown no remorse for his actions, the tribunal reduced his basic and compensatory awards by 50% for contributory conduct.
Weeks v Everything Everywhere Ltd
An employee repeatedly referred to his workplace as "Dante's Inferno" on Facebook. When asked to stop doing this by his employer, he refused and insisted that "no ****r can tell me what to do in my personal life".
Decision: Dismissal was fair. The tribunal found that the Facebook comments were likely to cause damage to the employer's reputation. More importantly, the employer had taken steps to prevent repetition, while the employee's response to this had been unreasonable.
Crisp v Apple Retail (UK) Ltd
An employee posted comments on Facebook which included "MobileMe ****d up my time zone for the third in a week and woke me up at 3am? JOY!!" (MobileMe was an Apple app) and "once again ***k you very much work".
Decision: Dismissal was fair. It was critical to the tribunal's decision that Apple had made clear in its policies and associated training that protecting its image was a "core value" and that commenting about the employer's products on social media was prohibited and likely to constitute gross misconduct
Whitham v Club 24 Ltd t/a Ventura
An employee made derogatory comments about her workplace on Facebook, including "I think I work in a nursery and I do not mean working with plants”.
Decision: Dismissal was unfair. The dismissal of the employee was not reasonable in all the circumstances. The comments were "relatively minor" and there was nothing to suggest that the employer had suffered any embarrassment or that its relationship with a key client had been harmed or jeopardised as a result (even though some of its employees were her Facebook friends). No one other than her friends could see the comments.
Anwar v LHR Airports Ltd
An employee allegedly posted on Facebook "How many dirty white *****g men rape and abuse children throughout the world! U can’t put this down to race or religion. We’re not going nowhere you racist *****d!! We are here to stay! We run this country. U lazy arse people on benefits living in council houses! Go get jobs u scum!!". His Facebook page did not have any privacy settings and so his post was accessible to the public. The employee denied he had made the posting and argued his account had been hacked.
Decision: Dismissal was unfair. Although a dismissal based on the offensive comments could be potentially fair, the employer had failed properly to investigate the allegation that another employee had posted the comments.
Employers do, and will continue to have, a great deal of scope and flexibility to use social media to investigate employee misconduct or use it as a basis for disciplinary action, but it should be used responsibly and fairly. Social media shouldn’t be used to trip employees up or catch them out; on the contrary, employees should be educated/reminded about using social media appropriately and about the dangers of posting comments about work, warning that they could be disciplined if such comments reflect badly on the employer in any way. Importantly employers have a duty to remind employees that there is little that is private about social media if they are going to refer to their work or the identity of their employer, either directly or indirectly. Whilst they do that, their employer will inevitably have an interest in what is said and take appropriate action if such comments cross the line.
Tony Hyams-Parish is a Partner in the Employment Team at DMH Stallard and advises employers on how to use social media lawfully when faced with employee misconduct. He can be contacted on 01293 558544 or firstname.lastname@example.org