The Workers Union is urging workers to think before they post on social media.
The organisation announced that increasing numbers of workers are asking for help as a consequence of comments posted about their employers on social media sites.
A spokesperson for The Workers Union said: ‘With the ever growing numbers of people on social media, the scope for misuse is expanding. It’s essential that workers think before they post, because once the genie is out of the bottle it’s next to impossible to put it back in. It is not enough to write “all views are my own and not those of my employer”; it will not save you in the event of posting unlawful content, offensive remarks or otherwise breaching the employer’s media policy.
‘Our general advice is to deal with any issues that you have with your employer through your workplace HR or, failing that, get in touch with a union for help and advice.’
The Case for Caution
The key area to understand is that conduct may still damage an employer’s reputation, even if it takes place outside of work. For this reason, social media or internet misuse by workers may amount to misconduct and a potentially fair reason for dismissal.
Here are a number of precedents.
In British Waterways Board v Smith an employee made derogatory comments about his employer on Facebook, which included ‘that’s why I hate my work for those reasons its not the work its the people who ruin it nasty horrible human beings’ and ‘on standby tonight so only going to get half p***ed lol’. The Employment Appeal Tribunal held that the dismissal was fair, as it did not matter that the misconduct had taken place two years before dismissal or that the employer had been aware of the misconduct throughout that period.
Workers should also be aware that the number or frequency of posts may be irrelevant. For example, in the case of Ward v Marston’s Plc, a part-time employee made a comment on his Facebook page about his employer, stating that an area manager, whom he had never met, ‘is apparently a c**t’.
Some of the employee’s Facebook friends were colleagues or former colleagues and would have been aware who the employee was talking about. The Employment Tribunal decided that the dismissal for making one highly offensive post was fair and within the range of reasonable responses.
At the same time, employees who have never received a copy of their employer’s social media policy may not be able to use this as a successful defence in the event of a breach. In the Ward v Marston case, for example, the Employment Tribunal accepted that the employee had never been provided with a copy of the social media policy and did not know that the employer had such a policy, but ruled that he could not claim to be unfamiliar with either the idea or content of such policies. His previous employer and another employer for whom he worked at the time both had social media policies.
In 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 f**ker can tell me what to do in my personal life’. The tribunal found that the Facebook comments were likely to cause damage to the employer’s reputation, so the dismissal was fair. More importantly, the employer had taken steps to prevent repetition, while the employee’s response to this had been unreasonable. The tribunal also found that the employee had directed a threatening Facebook post towards the colleague who had reported the initial posts, which itself was enough to justify the dismissal. The employer’s decision to dismiss for gross misconduct had therefore been within the range of reasonable responses.
In some cases, a tribunal may decide that an employee’s social media posts have not caused reputational damage to their employer – but that does not mean that workers should take the risk. In Trasler v B&Q, an employee posted on Facebook that “this place of work is beyond a f***ing joke” and that he would soon be “doing some busting”. In this case, the 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 employee 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.
The Workers Union Says…
Workers are unlikely to encourage constructive dialogue with their employers by posting comments on social media. Neither can they assume that offensive remarks will remain buried on the interwebs for all eternity. It is quite possible that other members of staff will share posts with company chiefs or someone else in the business will become aware of them.
We urge employees to ignore the impulse for “one click revenge” and take their grievances up through the proper channels or get some advice from a union. It only takes one ill chosen phrase to fry a career, so grab a moment of reflection before hitting post. It could be the best time out you ever take.
Legal case law contribution credit to I Polyakova, senior employment law solicitor.