How Linked –In Is Your Decision?

There has certainly been a rise in social media cases being reported in the media highlighting employers who have dismissed employees because of comments they have posted. In fact there is a myriad of different allegations which can be presented as well as equally the surprising responses received by those investigated for such misconduct. This is growing topic mainly because of the access of social media as smartphones are introduced in to common usage with the potential to upload comments instantly as well as their ability to film, photograph or voice record incidents in the workplace.  Each case reported brings a new question to the forefront  and displays how complex this area is becoming as we learn more and more about employees and what they are getting up to in works’ time or using works’ resources. I have recently delivered a seminar regarding this ever popular topic and considered the case law which surrounds this rapidly growing area of Employment Law and the common traps employers fall in when dealing with these cases.
Popular case law on this area typically focuses on the distinction between an employees’ right to privacy and an employer’s right to investigate incidents which come to their attention. It appears from rapidly emerging case law in this area that the Employment Tribunal take a wide approach to this issue at present and view all social media in the same way: social interaction. Facebook is not a private means of communication as posts are broadcast to others who have the potential to re-post these. There is no control over the post once it is in the public domain and it can take a matter of seconds for something to go viral or start trending.  It is also apparent that even if an employees’ profile does not mention their employers’ business specifically, this information can sometimes be sourced through other social media networks and generally from the internet. This potentially leaves the door open for others to complain about an employee’s conduct directly to the company.
The critical issue to consider in any case that deals with social media will always be, ‘what is the misconduct complained of and is the decision fair and reasonable given this misconduct?’  It will also help if the correct process has been followed before making the decision is made to ensure a knee jerk reaction has not dictated events and that any decision has been properly considered. It is often the decisions which have been made in spur of the moment which cannot be easily explained at a later date and cause the most problems.
So, my advice given this rapidly expanding area of law is, to firstly ensure that you have a clear and robust social media policy in place. Ensure this policy is reviewed regularly and updated to suit growing trends but most importantly, ensure that your employees are aware of the social media policy, and your expectations of how they should use both their personal and their professional social media and the potential of disciplinary action if they breach those expectations.