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Misconduct on social media and outside the workplace

At a time when most of us are using several social media sites on a daily basis, often for work purposes, you would be forgiven for wondering where, if anywhere, the boundaries lie between work and play.

Below, we lay out the ground rules set by Employment Tribunals so that employers can make it clear to employees what is acceptable in and out of work, on and off-line.

Misconduct and social media

ACAS’ guidance on social media, discipline and grievances is a sound starting point: “make it clear to employees what conduct online is acceptable, and what is not, and deal with any transgressions through the same procedures [you] would deal with any other kind of disciplinary or grievance matters.” But for what kind of misconduct have employers been able to lawfully dismiss, when it comes to social media?

Game Retail Ltd v Laws is one of the most important recent cases on social media. The Employment Appeal Tribunal held that a dismissal, for offensive tweets (“A&E with me dad useless tw*ts popped his hip out”, being a milder of the tweets) on the employee’s personal Twitter account, was potentially fair. The judgment highlighted the need to consider:

  • whether the tweeting was “private” (the claimant had followed more than 100 of its employer’s stores for work purposes and had let 65 of them follow him in return, without restricting privacy settings or removing followers);
  • the “range of reasonable responses” open to an employer in reacting to the employee’s behaviour;
  • whether the offensive tweets going out to 65 stores and possibly customers or potential customers might have caused offence; and
  • whether the tweets might be going to other employees, contrary to the employer’s harassment policy.

Damage to an employer’s reputation (repeated Facebook references to a company as“Dante’s Inferno” being one such example, in Weeks v Everything Everywhere Ltd), is a key consideration for findings of gross misconduct. However, Employment Tribunal decisions will always be fact-critical. If, for example (as was the case in Whitham v Club 24 Ltd):

  • comments are “relatively minor” and do not harm or jeopardise key client relations; and
  • an employee has a previously exemplary record and mitigating circumstances,

then comments made on social media sites may be “misconduct” instead of “gross misconduct”.

Since Employment Tribunals will look to examples of misconduct given in a company’s policies, employers should clearly set out what they consider to be misconduct and gross misconduct in their staff handbook, to avoid argument later, and should tighten up their social media policies, too. And if an employee’s right to privacy might be engaged, employers should ensure that all actions are a proportionate means of achieving a legitimate aim.

Misconduct outside the workplace

The general rule is that if conduct outside the workplace “could be thought to affect the employee,” when he or she is working (Singh v London Country Bus Services Ltd), then it may be fair to dismiss. This is pertinent in cases involving violence, sexual conduct or dishonesty and particularly when other employees are involved.

When it comes to criminal offences, ACAS’ rule of thumb is to consider what effect the charge or conviction would have on an employee’s suitability to do their job and their relationship with their employer, work colleagues and customers.

Important, also, is the issue of bringing an employer into disrepute. In The Post Office v Liddiard, the Court of Appeal held that employers should consider whether dismissal, for conduct which results in its company being brought into disrepute, falls within the range of reasonable responses open to it.

And what of work social events? Employers should again apply the age old band of reasonable responses test (dismissal having been held to be unreasonable for an isolated incident, of a limited duration and outside working hours, in Williams v Whitbread Beer Co).

Employers can therefore help themselves by 1) documenting misconduct, as soon as it comes to their attention and 2) keeping a written (and well thought-through) assessment on the impact on the company’s reputation and client base, to give any dismissal the most solid foundation possible.

Posted on April 22, 2015

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