Social Media in the Workplace: Managing Performance & Preventing Harrassment

Dylan Loughlin

Relevant Caselaw

Teggart v TeleTech UK Limited (2012) CRN;704/11.

Jason Steele v Asda Stores Ltd [2017] NIIT.

Preece v JD Wetherspoons plc ET/2104806/10.

Whittham v Club 24 Limited t/a Ventura [2011] CRN; 1810462/2010.

Emma McKay v L’il Butterflies Day Nursery [2016] NIIT 02242/15IT.

Martin v Giambrone [2013] NIQB 48.

A fairly recent phenomenon that rose at the beginning of the 21st century, social media has now become synonymous with modern-day living for many people. The ability to connect with friends, family, colleagues and stakeholders daily without physical presence has brought many benefits but can also give rise to problems for employers and workplaces.

Within the workplace, social media can aid external opportunities including profile raising, networking and ease of advertising certain products and services. It can also be used internally to allow for the sharing of information, best practice and knowledge amongst staff. Alternatively, for the recruitment process, it can allow for a more in-depth analysis of potential employees make the selection process that bit easier.

With advantages come disadvantages, and legal implications that we must be aware of and make our employees aware of. Managing social media within our teams and organizations can sometimes involve blurring the lines between workplace and private life.

This blog will look at examples of best practice policies that will aid the integration of social media in the workplace in a way that does not give rise to costly tribunal claims.

Managing Performance

This more specifically is in reference to accessing the internet during work hours to ensure it is not causing a detriment to the performance of employees. It can cause a lack of productivity if accessed during work hours, creating a distraction and cutting into the time allocated for other matters. Perhaps often overlooked is the health and safety aspect that can relate to the addictive nature of social media. This would be further emphasised with specific job roles ie: working within a drivers role.

It is important to have an in-depth social media usage policy, outlining when and if social media should be used. It should be connected to disciplinary action if not followed, this will ensure the best performance and usage of time from employees.

Bullying and Harassment

This can allow for aspects of bullying and harassment to arise through social media. This blurs the lines between private and work life, but if not controlled could see an employer being held liable in an industrial tribunal. This could be minor in terms of unwanted friend request to something more serious such as raising a negative opinion on one of the 9 protected characteristics (Race, Religion, Political Opinion, Sexual Orientation, Nationality, Age, Disability, Pregnancy and Gender Reassignment).

In the cases of Teggart v TeleTech UK Limited and Jason Steele v Asda Stores Ltd [2017] the issue of bullying and harassment was at the forefront in the context of social media. It is important that employers understand that they will be liable for actions of employees during the course of their employment unless they take “reasonable” action against the allegations.

Key Caselaw Examples to be aware off:

Preece v JD Wetherspoons plc: This relates to a dismissal for an employee for inappropriate posting on Facebook following an incident that took place during work hours. The employee named customers involved and began a discussion with other members of staff slating them and mocking the fact that they were barred for the premises. She was dismissed and on appeal the original decision was upheld that the company had “reasonable belief” that the employee had been guilty of breaching the policies around social media usage and she was dismissed for gross misconduct. The tribunal held that she was fairly dismissed.

Whittham v Club 24 Limited t/a Ventura: This case set precedent that even if an employer’s name is not used, if there is sufficient evidence to show the comments relate to the employer in question the decision to dismiss is fair.

– As held in the case of Emma McKay v L’il Butterflies Day Nursery it is important to note that the band of reasonable responses still applies. This means that if the breach of the social media policy is minor and results in dismissal the dismissal can be found to be unfair.

Martin v Giambrone: Is a cautious approach to social media usage, Honer J reiterated that employee’s should proceed with caution on what they post onto social media platforms. Whilst it is intended only to be shared with friends, it can go beyond that and have detrimental implications for their current work situations and future careers.

In Review:

Ensure at all times there is a clear and well thought out social media policy in place. This will allow for clarity on the employees part and will also allow for the employer to take action if any breaches occur.

Employers can take appropriate action if an employee’s action on social media platforms bring the company into disrepute. It is vital that if this does occur that the employer has sufficient evidence to stand by their decision, whatever that may be. As previously mentioned, this decision must fall within the band of reasonable responses and this needs to be taken into consideration when assessing any breach and the evidence surrounding same.

Finally, an employer can take action for social media breaches that take place both within and outside the workplace. This does mean that an employee’s right to privacy is limited within certain circumstance, but as social media is often a public platform this is something that should be at the forefront of every employee and indeed employers mind.

Whilst we would hope all employees would adopt the mindset that all actions have consequences, including social media posting, that is an ideal world and within the world workplace activity, it is often not as straight forward. It is essential that each employer constantly updates their social media policy to adopt to the ever-changing presence of the internet, train all employees on social media and what is expected, and as always monitor company-related social media platforms on a regular basis.

Claire-Louise Mooney, LLB

Copacetic Legal Consultant