How should your business handle misuse of social media by employees? Employment lawyer Kevin Poulter talks through the key issues

Social media use seems to be growing faster than the legal or political methods available to control it – as the recent riots have highlighted. Whether it’s naming footballers otherwise protected by a super-injunction, or a breeding salubrious gossip, social media is entrenched in our lives.

Twitter now has more than 200 million registered users worldwide, generating around 65 million unregulated tweets per day. Facebook has more than 600 million active users worldwide (and an Oscar winning film under its belt).

BlackBerry Messenger (BBM) has had the power to catch out and confuse the authorities, as we saw from criminals taking to the streets in what might be called organised anarchy.

With statistics like these and stories to support them, there is more than a chance that your employees will be sharing their lives, thoughts, photos, videos and opinions with anyone who shows the slightest interest.

Employee’s inappropriate behaviour

“Unfortunately, as most employers know, there is no simple answer or a “one size fits all” rule to determining what will and what will not constitute misconduct”
The question facing employers, and in turn the courts and tribunals, is whether an employer can take disciplinary action against an employee for things done outside the workplace; or for private opinions expressed publicly online.

As with overheard conversations in the pub, employers are not obliged to disregard an employee’s conduct simply because it occurs outside the workplace.

There will be a case for disciplinary action if the conduct is not private in nature, and where there is a readily identifiable link to an employer.

A key question will be whether the opinion, comment or action has an impact on the employee’s ability to do his or her job.

Where an employee’s views or opinions are considered to be incompatible with those of the employer, or otherwise harmful, several things should be considered:

1. What is the position or status of the employee in the company? The more senior or recognisable the employee, the more likely the company will be adversely affected.
2. The type of business undertaking and whether the name of the employer is referred to.
3. The actual, or potential effect on the business.
4. The potential readership or number of viewers: how big is the network?
   In one case, a pub manager made disrespectful and derogatory comments on her Facebook profile to her 646 “friends” about regular pub customers.

The comments filtered through to the customers and following a complaint, the manager was dismissed. A tribunal determined that this was a fair dismissal, despite the employee arguing that her comments could only be viewed by 40-50 close friends.

On the flipside, in a case brought against the former supermarket chain Somerfield, an employee was found to have been unfairly dismissed after posting a video clip of colleagues fighting with branded plastic bags whilst at work.

The Tribunal considered that there was no clear association with the supermarket. And, in any event, despite the clip being on YouTube and accessible to anyone, it had only been viewed eight times.

Even taking the above into account, the starting point may be to assume that anything said or posted online is generally available for public consumption. Employees should be alerted that this is the case.

The more serious, harmful (or potentially harmful) the comments or actions are, the more serious the misconduct which can be dealt with through the normal disciplinary procedures.

With all that in mind, only time will tell what will happen in response to the riots.

This article was first published at www.londonlovesbusiness.com on 22 August 2011