Can I dismiss an employee for posts they made on social media?

Social media can be used in many positive ways. However, for employers it can create many difficulties with employee use of social media coming at a price. This is both in terms of lost productivity in businesses which allow free Internet access during work hours, and in potential damage to reputation if an employee posts an inappropriate comment or derogatory remark about their employer online. The following cases highlight some of the issues that have arisen from social media for employers in recent times. Employment tribunals have shown a willingness to rule that dismissals are fair providing a clear policy on social media is available and the dismissal is a reasonable response to the infringement.  

In the case of Forstater v CGD Europe, Forstater claimed direct discrimination and harassment against her “gender-critical” beliefs that she had posted on social media after her contract was not renewed. The Employment Appeal Tribunal found that she had been directly discriminated against as despite the fact that her ‘belief might well be considered offensive and abhorrent to some…’ her beliefs were widely shared and were also in accordance with previous decisions of UK law.

In the case of Crisp v Apple, the tribunal ruled that an employee was fairly dismissed after he had posted negative comments about his employer on his private Facebook page. The tribunal heard that Apple has a clear policy on social media which prohibits employees from making comments or acting in any way which might damage their brand. Employees are given training to the effect that they must be mindful of the way they present themselves in public, including online, and that comments made outside of work which affect the company image are still covered by company policy. The tribunal found that dismissal was within the range of reasonable responses to Mr Crisp's negative comments online. 

In the case of Teggart v Teletach, the Northern Ireland industrial tribunal held that the dismissal of an employee for posting obscene comments relating to the promiscuity of a female colleague on his Facebook page was reasonable and fair. The comments did not directly affect the employer's reputation but the harassment of a colleague, which this was, was serious enough to justify the dismissal on the basis of gross misconduct. Furthermore, having made his comments public, the employee had no reasonable expectation of privacy for the purposes of Article 8 of the European Convention on Human Rights (ECHR).  

In the case of Taylor v Somerfield, an employment tribunal found that an employee was unfairly dismissed for posting a behind the scenes video of the supermarket on YouTube. The tribunal was clearly influenced in its view that the dismissal was not reasonable by the fact that the video had only received eight hits, Somerfield was not identifiable from the footage and no complaints about the clip had been received from customers.

When faced with cases involving social media in the workplace the courts consider the following;

• Damage/loss of reputation. The courts have shown that the risk of damage to reputation is sufficient to show reasonableness and therefore employers do not have to show actual damage to reputation. Employers should remind their employees that personal life and work life often cross over and so they should act cautiously when posting on social media.
• Privacy and human rights. Section 6 of the Human Rights Act 1998 obliges employers to act in accordance with the provisions of human rights law. Therefore, a key consideration for the courts is whether dismissal infringes an employee's right to privacy under the ECHR, Article 8. 
• Freedom of expression. Courts also consider whether a dismissal infringes an employees' right to freedom of expression. We fear living in a totalitarian state, and for some employees a highly restrictive social media policy may serve to generate that impression. However, the right to freedom of expression is subject to limitations, in particular the 'protection of the reputation or rights of others'.
• Social media policies. If an employer has a clear cut policy, the courts are more likely to find a dismissal to be fair if the facts show that the employee did not follow the policy. However, as seen above, the policy cannot be too overbearing to the point where the employer’s instructions reduce private life to zero.

Five points for employers to consider

• Employers should ensure that they have a clear and comprehensive social media policy which includes practical guidelines for employees.
• They should communicate the policy to all their staff so that everyone fully understands what is and is not acceptable behaviour.
• Social media is, by its very nature informal, employees may not appreciate how this can lead to workplace issues so it could be helpful to train staff on the dos and don'ts.
• Once a policy in place it is vital that this is enforced consistently and line managers should be trained on disciplinary procedures etc.
• If employers allow staff to use professional networking or other sites for legitimate work purposes, they should consider asking staff to sign up to special terms regarding confidentiality and post-termination restrictions.