Using social media to keep up appearances

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Social media is everywhere, including in the workplace. Laura Morrison, an employment lawyer with Dentons, discusses what retailers can do to try and minimise their reputational risks online

dentons-laura-morrison
Based in Dentons’ Edinburgh office, Laura Morrison is a senior practice development lawyer with over 13 years’ experience as an employment lawyer. laura.morrison@dentons.com

by Laura Morrison

Can employers take action in relation to behaviour on social media?

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There is a growing body of cases dealing with employees’ use of social media, both inside and outside work. It is clear that social media use can sometimes be a fair reason for dismissal, but much will depend on the particular facts.

One of the key factors in this type of case is the (potential) damage to an employer’s reputation. In one case, describing a workplace as “Dante’s inferno” on Facebook was found to be sufficiently damaging to warrant dismissal.

However, in another case an employee who uploaded an offensive image with the employer’s logo partially visible was found to have been unfairly dismissed, as the post had been visible for several months and there was no evidence of damage to the employer.

Before taking action, you should consider if the offending comments were made on a work-related or personal account and whether the account is public. If the account was work-related and/or public, a tribunal is more likely to find a dismissal fair. It is important to take a proportionate view of the damage or potential damage. In many cases it is not likely to be enough that the comments do not portray the employer in the best possible light.

Can an employer take action in relation to personal views expressed outside work on social media?

When an employee expresses an offensive personal view, you should consider how likely it is that the public would believe that the employer condones the content.

In a case brought against a rugby club, it was held unlikely that anyone would assume that a rugby player tweeting a naked photo was condoned by the club and so the dismissal was wrongful. 

Social media can also be fertile ground for discrimination cases. In a very recent case brought against London Heathrow Airport, an employee posted a racially offensive photo on a private Facebook page. The photo was shown to another employee who later brought proceedings against the employer for harassment.

The employee had not posted the image while at work and did not mention any colleagues or their employer in the post. As a result, the Employment Appeal Tribunal held that posting the image was not done “in the course of employment”, meaning the employer was not liable for harassment. However, had the employee linked themselves to their employer on their Facebook page, or if they had tagged a large number of colleagues in the offensive post, the outcome might have been different.

What can retailers do to minimise social media related risks?

Employers should ensure they have a social media policy in place. The policy should apply to social media for business purposes and personal use that may affect the business. The policy should define prohibited use, set guidelines for responsible use and highlight the consequences of breaching the policy.

It also helps if the policy emphasises the importance the business places on its reputation and safeguarding its public image. Don’t forget to update the policy regularly.

If you discover unacceptable use of social media, you should, as always, conduct a full investigation. Consider carefully the extent of (potential) damage to your business and whether:

• The employee knew, or ought reasonably to have known, that their conduct was likely to place their employment at risk;

• They have shown remorse; and

• Any other action would be a sufficient alternative to dismissal. 

Do you have a business, property or legal question or issue that you would like to know more about?

Contact Scottish Grocer and we’ll put it to an expert. Call Matthew Lynas on 0141 567 6074 or email matthew.lynas@peeblesmedia.com