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Digital revenge

12 December 2017

Justyna Cowman, HR Administrator at Aspire Business Partnership LLP, comments on social media platforms and the HR issues that employers could encounter…

The Risk

Social media platforms are not only becoming more and more popular on personal and professional levels, but are also turning into a powerful tool to influence audiences. According to Statista;

“At the beginning of 2017, the total number of social media users in the UK had reached over 39 million users”.

Employers are faced with the challenge of differentiating between personal and professional social media accounts, which brings the complication of ex-employees having ongoing access to business contacts and clients  on social and business networking sites such as Facebook, Twitter and LinkedIn.

Due to the increased use of social media, there are high risks to employers of negative comments, or those of confidential nature, being posted by disgruntled employees or ex-employees, about their employment or the business itself. The potential damage caused by a simple click of a button can be tremendous. Starting from the breakdown of relationships amongst staff, to loss of clients, or even legal proceedings. Misuse of social media by employees costs UK’s economy billions of pounds every year, where employers are spending time and money dealing with issues like time theft, client poaching, defamation, cyber bullying, freedom of speech and the invasion of privacy.

There is certain legal consideration that employers must consider when dealing with social media, such as:

The Human Rights Act 1998 - Article 8 gives a 'right to respect for private and family life, home and correspondence'

The Data Protection Act 1988 (which will be replaced by GDPR on 25th May 2018) - Indicates in what way information about employees and job applicants can be collected, retained, handled and used.

The Regulation of Investigatory Powers Act 2000 - Specifies the extent to which businesses can use surveillance.

Case Law

Cases such as Whitham v Club 24 Ltd t/a Ventura are a great example that employers need to be very careful of actions taken once comments are submitted online. In this case, Mrs Whitham worked as a team leader for Club 24, which provides customer services for Skoda, part of the Volkswagen group. Mrs Whitham had a clean disciplinary record, however, having had a “difficult” day at work, Mrs Whitham posted on her Facebook account, which resulted in further comments from her Facebook friends and herself;

“I think I work in a nursery and I do not mean one working with plants.”

The employer was concerned that the posts could have a detrimental effect on the business and suspended Mrs Whitham before deciding she should be summarily dismissed. However, The Tribunal ruled that Mrs Whitham had been unfairly dismissed on the basis that the employer’s decision to dismiss Mrs Whitham was outside the band of reasonable responses open to a reasonable employer

In most cases, employees who mention their employment in social media posts will warrant a disciplinary action of some sort, but employers should not be too hasty to dismiss.

The potential effect of these comments on the business’ reputation and relationships with suppliers, client, shareholders, or any other stakeholders should be one of the  main considerations in deciding and justifying the action to be taken against an employee.

However, if the investigation found no firm harmful evidence, employers should be cautious of dismissing employees unless there are other justifiable reasons to do so, such as clear breach of company policy on Use of Social Media.

How to avoid a social media HR nightmare

Legal compliance and developing appropriate HR policies are crucial to avoid any discrepancies in employees’ online conduct.

We recommend that all employers have a ‘Use of Social Media Policy’ to clearly set out their expectations and guidance when it comes to social media, but we should not forget that many online comments made by disgruntled employees very often arise from grievances or workload stress.

Employers should not overlook that other connecting policies such as Capability and Grievance processes can lower the risk of staff dissatisfaction and communicating the existence of these policies could avoid the scenario whereby an employee takes to social media to complain about their employment, instead of making a grievance. A clear and fair Disciplinary Procedure must also ensure that all employees are treated fairly and consistently and ensure that disciplinary sanctions imposed on employees reflect the weight of the misconduct by the employee. Policies and all documentation should be updated regularly to reflect the constant technological change.

How can we help? 

We firmly stand by our motto that “Prevention is better than cure” and so, we would be more than happy to discuss how we can assist you in ensuring you are compliantly meeting your employer obligations, by having all of the correct contractual documentation and policies in place to prevent Tribunal action, and by training your management to fully understand the policies in place.

We also specialise in conflict resolution, so please do not hesitate to get in touch if social media, or any other matters, are causing an issue in an employee-employer relationship.

See our other news items on social media related issues here;

Barbulescu Case Highlights Importance of Employer's Rights to Read a Worker's Personal Inbox Messages

Social Media – be careful what you post!

Dismissal found to be Fair for Private Twitter Use

Social Media Dismissals