Business aid: Social media, the workplace and misconduct

Ian Wilson of local solicitors Dean Wilson LLP answers questions on Employment Law. This week: social media, the workplace and misconduct

How should misconduct in connection with the use of social media be dealt with?

Misconduct coming to light via social media can result in action being taken. An employee took part in London Fashion Week whilst she was on sick leave. Her Facebook page referred to her auditioning 300 models and choreographing a fashion show. An employment tribunal found her dismissal to be fair. The employer was entitled to take the view that her employment had become untenable and that it had lost trust and confidence in her.

This is contrasted with an employee of Argos who clicked ‘like’ when a former colleague said on Facebook that her manager was as much use as a chocolate teapot. The employee commented that this had been the worst year in her 15 years with Argos and said she was happy that her former colleague had escaped. At a disciplinary meeting the employee apologised, promised not to do anything similar in future and stressed that she had apologised to her manager. She was dismissed for breach of Argos’ social networking policy which had made it clear that comments amounting to bullying and harassment could constitute gross misconduct. The dismissal was unfair as no reasonable employer could have concluded that the comments amounted to bullying and harassment and they were no more than workplace gossip or routine criticism of an employer.

An employee of JD Wetherspoons was verbally abused and physically threatened during the course of a shift and she received abusive telephone calls. Whilst still on duty she made comments on her Facebook page, referring to two of the customers by name who had been asked to leave. Some of her Facebook friends were colleagues and customers. A complaint was made by one of the customers who had been named. The employee was dismissed and an employment tribunal found the dismissal to be fair. The employee’s argument that she had used Facebook as a vent for her anger and upset was not accepted. There was a facility in place where a manager was available to discuss any problems over the phone on a 24-hour basis and the dismissing manager had been entitled to the view that the comments posted were more of a joke between friends.

A starting point to reduce the risk for businesses would be to have in place a social media use policy which clearly sets out what is and is not acceptable.

Employees should be clear about what they can and cannot do.