4th November, 2011
Whether through tweeting, blogging or other means – 22.7% of time online is spent on social networking (UKOM). That’s more than three times the second most time consuming online activity which is e-mailing at only 7.2% (UKOM). If so much time is spent on social networking it is inevitable that cases in Employment law involving social media activities will increase dramatically in the next few months.
One difficult question in this area is: where does an individual’s obligation to his employer end and his private life begin? In Pay v United Kingdom  IRLR 139, an employee was dismissed after photographs of him participating in sado-masochistic activities were posted on the internet. In this particular case, given the nature of his role as a probation officer dealing with sexual offenders, interference to his private life under the European Convention on Human Rights was held to be proportionate by the European Court of Human Rights.
In Whitham v Club 24 Ltd t/a Ventura ET/1810462/10 an employee who posted comments suggesting that her colleagues were immature was unfairly dismissed since the comments were relatively mild and there were no specific references to any clients. Nor was there evidence of any actual or likely harm to the relationship between the Respondent and a client, Volkswagen.
In Preece v JD Wetherspoons plc ET2104806110 an employee was held to have been fairly dismissed after she made comments on her Facebook account whilst at work about customers who had been abusive to her and another employee. Miss Preece’s contract included a term that Wetherspoons could immediately terminate her contract if she was found guilty of gross misconduct. Examples of gross misconduct included failure to comply with the e-mail, internet and intranet policy.
There are relatively few reported cases on the topic of social media as of yet and few potential issues have been considered by the appeal courts. Until further guidance is available, employers should consider implementing a policy to deal with social media. The policy should cover the following:
– scope of the policy i.e. what is permitted and what is restricted;
– reserve the right to monitor and review IT resources;
– personal use of social media;
– reference to bullying, disciplinary, data protection and other related policies;
– consequences of breaching the policy.
For a social media policy or any other general queries, please contact Helen Watson on 01244 405555 or email [email protected].