Employers are increasingly having to deal with offensive or inappropriate conduct by their employees on social media.
This might consist of unpleasant political views on Twitter or openly discussing unusual sexual practices on Facebook. When this happens, can the employer take disciplinary action against the employee?
Misconduct does not have to be something that occurs in the course of actual work or at the actual place of work or even be connected with the work. All that is required is that, in some respect or other, it affects (or could be thought to be likely to affect) the employee when they are doing their work.
Where the activity is not private and where the link to the employer is readily identifiable, there will clearly be a case for disciplinary action. Typically, this will involve LinkedIn or on Facebook, where the employer is listed on the employee’s profile. However, where the activity is ostensibly private and there is no obvious link to the employer, what matters is whether, once discovered by the employer, it has an impact on the employee’s ability to do his job.
In Gosden v Lifeline Project Limited, an employment tribunal upheld the dismissal of a drugs welfare worker who expressed sexist and racist views in a private email sent from his home computer to that of a friend (ET/2802731/2009).
What this case does not clarify is whether any employee found to have forwarded such an email could reasonably be dismissed by his employer. Much depends on the employee’s role and the extent to which holding such views is inconsistent with that role. Most employers would argue that sexist and racist views are incompatible with their approach to equal opportunities and, therefore, completely unacceptable. Where such views are expressed, however, it may be harder to justify the dismissal of a junior employee with general duties, such as a filing clerk or catering assistant, than someone in a role (as in Gosden) with a close connection to individuals who share the characteristics disparaged in the email.
Gosden is only an employment tribunal decision and does not bind other tribunals. Further case law will be needed before the boundaries of the employment relationship in this context can be drawn with absolute certainty.
In the meantime, employers should put in place clear social media policies which make clear to employees the approach that they will take to conduct in both the professional and private sphere.
If you would like to discuss any aspect of the use of social media by your employees, please contact Colin Smith at firstname.lastname@example.org or on 01494 478605.