In December 2012, Keir Starmer, the Director of Public Prosecutions (DPP) set out interim guidelines for the prosecution of people who misuse social media, but are these suitable for use in the workplace?

As a result of an increase in the number of allegations the Crown Prosecution Service has had to deal with – about 60 in the last 18 months – and a two year prosecution and appeal following an accountant who ‘jokingly’ threatened to blow up an airport when he expected it to be closed before his booked flight to visit his girlfriend, the DPP was forced into some head-scratching. Added to this, the hapless victim of the twitter joke trial gained popular and celebrity support, most notably from technology nerd Stephen Fry, who brought with him public and press interest, not just in the case but the effect it could have on the estimated 10 million Twitter users in the UK.

Ultimately, the prosecution failed and the DPP was left to pick up the pieces and then determine at which point misuse of social media becomes actionable in the criminal courts. Throw into the mix the highly controversial naming of an alleged paedophile and peer on twitter and it was clear something needed to be done.

The guidelines are intended to set a high threshold for prosecution in cases where people post “grossly offensive, obscene or false” messages that credibly threaten violence, harass or stalk with Starmer urging “considerable caution” before criminal charges are brought. Other offences deemed to be less serious might be those which cause “annoyance, inconvenience or needless anxiety to another” are unlikely to reach the required threshold.

For employers faced with circumstances arising from an employee’s misuse of social media, these guidelines can be a useful measure in assessing the severity of any sanction, but care must be taken even before that stage. Key to any fair process is the thoroughness of the investigation and the collection of evidence. Employment law is built on a foundation of reasonableness, unlike criminal law where the standard of proof is much higher, but a poor or insufficient investigation can often render an otherwise sensible sanction unfair.

Businesses will also have to consider the commercial implications of any procedure and investigation and balance this against the risk of a tribunal claim by not only the disciplined employee, but possibly an employee who has made a complaint of harassment or bullying.

Starmer has addressed the difficulties that arise from drunken and heat of the moment communications:

“If a message is taken down very swiftly and there is remorse then it may not be proportionate to have a criminal prosecution. It is not a defence that you have sobered up but it is relevant that whatever the material was, it was taken down pretty quickly when the person realised it was inappropriate.”

This is sensible advice for employers too. Employment Tribunals have not previously taken into account the remorse of the employee, preferring instead to consider the status of the individual, size of audience, type of business and the potential or actual effect of the act. Context too, according to Starmer, will be an important consideration: “Banter, jokes and offensive comments are commonplace and often instantaneous. Communications intended for a few may reach millions.” Again, sensible advice for employers, some of whom remain fearful of a medium which is relatively new, often misunderstood and largely unregulated.

The guidelines provide a useful measure for considering complaints of social media misuse in the workplace although there will be many circumstances where complaints which would not satisfy the test for criminal prosecution justify a disciplinary sanction or in more serious cases, dismissal. Employers should think about the principles behind the guidelines,. Not necessarily the detail of them. Employment Tribunals are becoming increasingly aware of the distress that the misuse of social media can cause, particularly where individuals are the intended victims, and will permit appropriate action so long as it is properly reasoned and justified.