Private Profiles but Public Comments
Recently a senior lawyer was reprimanded for a sexist comment, a young man was assaulted by his ex-wife’s new partner and a man was sacked for being rude about his employer.
Not entirely unusual, but you may be surprised by the fact that all these incidents arose from comments made on social media. None of the comments made were made publically, some weren’t even directly made to the person concerned. Even so real people suffered real consequences ranging from hospitalisation to losing their jobs.
Actions online can have real life consequences.
But isn’t social media private?
No. A simple rule: if you want to keep it private then don’t post it.
A private linked in comment made by a male Solicitor was shared publically on social media by the female Barrister to whom it was made, seeking to shame him and address perceived sexist issues. The solicitor was reprimanded. But her snowball had started an avalanche and the Barrister herself became the target of online attacks, damaging her career too.
That was how the young man ended up being attacked and put in hospital – his comments about his ex-wife circulated through his contacts and he really found out who his “friends” were.
Do you know who your friends are?
People have huge networks of contacts on social media, can you really keep track of so many people? Do you really know who is reading your post?
A recent case concerned a canal worker who posted adverse comments about his employer and senior staff on facebook, comments he thought were only viewed by his friends. Unfortunately for him some of them were “friends” with his employers.
His comments about getting drunk before work, calling his employers rude and abusive names and abusing the business were not as private as he thought. They got back to his colleagues, the employment director and he found himself suspended facing disciplinary action.
So what happened to the canal worker?
The Employment Appeals Tribunal held that it was fair to sack the canal workerfor making derogatory comments about his employer on Facebook. It did not matter that the comments had been made two years before he was sacked or that the employer had been aware of the misconduct. (The British Waterways Board v Smith  UKEAT/0004/15.)
What is the law on sacking an employee?
Employees with more than two years’ service have the right not to be unfairly dismissed. In order for a dismissal to be fair, the employer must establish that the reason for dismissal is a potentially fair and follow a fair procedure.
Where the reason for dismissal is conduct, an employer must establish that, at the time of dismissal it believed the employee to be guilty of misconduct, that it had reasonable grounds for doing so and that it had carried out as much investigation as was reasonable in the circumstances.
Social Media Policy: make it a business practice
The canal worker’s employer had social media policy prohibiting “any action on the internet which might embarrass or discredit BW (including defamation of third parties, for example, by posting comments on bulletin boards or chat rooms)”.
They also had a disciplinary policy providing that it could dismiss employees for gross misconduct and cited serious breaches of its policies as an example of gross misconduct.
When the employment department of the business searches the canal worker’s facebook page going back two years they found a lot of derogatory material which breached the social media policy. The beach of this policy also breached the disciplinary policy, allowing them to sack him for private comments made 2 years ago.
The Employment Appeals Tribunal confirmed that the dismissal was fair and the worker was sacked.
Without the clearly worded policies the result would have been very different.
What should you do as a business owner?
- Make sure you have a clear social media policy saying what is and isn’t acceptable on social media
- Make sure that your disciplinary policy is up to date and deals with the social media policy
- Raise any issues of inappropriate or unacceptable posts with the employee when you become aware of them
- Educate your employees on what is and isn’t acceptable on social media and to exercise caution and restraint when they post
- If you are unsure about what to do take legal advice early and avoid an expensive mistake.
Graham & Rosen are able to advise on all employment matters and help you to build your disciplinary and social media policies. For more information contact Alex Green on firstname.lastname@example.org