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Social Media & Employment: Designing A Digital Conduct Policy

In a recent decision, the Employment Appeals Tribunal (EAT) found that the dismissal of a former canal worker was proportionate after he posted on his Facebook account that he had been drunk while on a standby shift and made derogatory comments about has supervisors. Although this was the first Scottish appellate decision dealing with the issue of social media misconduct, the EAT did not require any “special rules” regarding social media but decided the case according to the ordinary principles of employment law.

The growing ubiquity of cell phones, especially the rise of smartphones, has made social networking widespread, giving employers another element in their management of employees and protection of brand image. This case serves as a reminded to employers as to the importance of having social media guidelines in place, in order to simultaneously handle potential misconduct online while protecting their image.

Scottish Canals v David Smith

The EAT had previously established the relevant test to apply to social media misconduct in Iceland Frozen Foods, asking whether the decision to dismiss the employee fell within the ‘band of reasonable responses open to an employer’. Further, it held in Game Retail Ltd v. Laws that cases involving social media were likely to be fact-sensitive, and applied the same ‘band of reasonable responses’ test to the privacy settings of social media posts, their potential to cause offence and the fact that the comments were unrelated to the user’s employment.

In the Scottish Canals v David Smith case, Scottish Canals appealed against a determination of the employment tribunal that Smith's dismissal was unfair on the basis that the dismissal decision fell outside the band of reasonable responses open to an employer.

In the appeal, the EAT heard that Smith had made a number of "highly offensive and inflammatory" comments about his supervisors and team leaders on Facebook, as well as "specific and elaborate" comments about drinking while in a "position of trust". 

The Claimant admitted to making the statements, but added he thought that his Facebook account was private and that he had not expressly mentioned whom he worked for. He also said that he had not been drinking, and that it was "convenient" that the comments had come to light while he was in the process of bringing a grievance against his employer.

In order for dismissal of an employee to be "fair", it must be for one of the potentially fair reasons set out in the 1996 Employment Rights Act and dismissal must be one of the responses open to a reasonable employer to adopt in the circumstances.

In the present case, the EAT judge found that the dismissal was fair: the employer had carried out a procedurally fair, and sufficient, investigation into the incident, following which confidence was lost in the employee and a fair procedure leading to his dismissal was followed.

The outcome of this case displays a misunderstanding of social media policy in a professional context, highlighting the importance for an employer to provide guidance to employees who engaged in, or are considering whether to engage in, social media activity. 

How should employers think about social media in the workplace?

This recent case, and a number of those in the last few years, have been noteworthy due to employers having dismissed employees for social media related conduct, and not simply their conduct or work performance. Despite these cases, some employers continue to fail to acknowledge both the positive and negative effect that social media may have, while some employees also fail to recognise the possible consequences of their activities and online comments.

As courts continue to struggle to adapt the existing law to new advances in technology, it is the responsibility of employers to make clear their own policies in order to avoid possible disputes. To do this, employers may offer guidance on social media misconduct:

  • Design a social media policy that states the acceptable practice with regard to the specific workplace; and
  • Ensure all staff are made aware of this policy and trained in its practice.

Establishing a social media policy

Although policies will vary according to the practice of the business, employers should think critically about what effects they wish social media to have on their enterprise. The purpose of a policy in the workplace should be to:

  • consider what value engaging in social media will bring to a business and its clients;
  • ensure that the standards and processes that are in place are communicated to all staff, and that they are using the most appropriate channels;
  • set expectations on the use of social media when applied to 'personal' or 'non-business' accounts and whether these are linked to business channels in any form; and
  • to protect a business’s reputation from inappropriate use of social media.

It is good practice to elect an individual to be responsible for the communicating and overseeing of social media activity within a business.

What is included in a social media policy?

Policies will vary according to the business, but there are several key points to consider when drafting a policy, including:

  • Goals – What are the goals for the social media policy?
  • Evaluation – How are these goals to be monitored and evaluated?
  • Strategy – How is social media to support or promote the goals of the business?
  • Engagement – What are the limitations for what can be discussed, commented on or promoted via social media to avoid misconduct or damage to brand image?
  • Management – Who is responsible for managing the business’s social media policy and for ensuring compliance? This may include the training and support of staff in this policy and the details of any breaches.
  • Compliance – How will it be ensured that any disciplinary procedure regarding social media misconduct is compliant with employment regulations?
  • Confidentiality – How does the business ensure that confidentiality is maintained within social media?
  • Consistency – How will it be ensured that consistency is maintained in the approach to promoting social media through all channels?
  • Response – What is the plan for the contingency in which there is an incident involving social media?

Conclusion

Employers should consider the potential effects on business when faced with social media misconduct. In addition to the benefits of marketing and professional networking, it is important that there is an awareness of the risk involved in social media.

One of the fundamental considerations that those participating in social media activity should be aware of is the potential blurring of the boundaries between personal and professional use, and the importance of recognising that the same ethical obligations apply to professional conduct in an online environment.

A strong social media policy can address these issues. We would be happy to help your organisation in drafting yours to ensure that the risks to your business are managed and kept to a minimum.

Contact our Employment Lawyers in Glasgow

If you require legal advice regarding any employment issue our team of employment lawyers can help. To discuss any problems you may have, contact our team today using our online contact form or call us on 0141 530 9164.

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