Minimising risk through proper social media policies

facebook image - CopyThe recent case of British Waterways Board v Smith highlights the challenges faced by employers in the digital media age. Mark Minns, a lawyer at mpm legal solutions Limited, specialising in employment law, talks to Janine Isenegger about what this decision might mean for employers in the future and what in-house lawyers should consider when advising on social media issues.

 What were the facts of the case?

Mr Smith worked as a manual worker

for a team responsible for the maintenance and upkeep of canals and reservoirs from 1 April 2005 to 4 June 2013, when he was dismissed for gross misconduct. The team worked on a rota whereby they were on standby for one week in every five. During periods of standby, the consumption of alcohol was prohibited.

British Waterways Board disciplinary policy provided that they could dismiss employees for gross misconduct, listing a serious breach of its policies as an example. The social media policy prohibited any action online which might embarrass or discredit the company.

In May 2013, one of Mr Smith's managers supplied evidence of incriminating comments Mr Smith had made on Facebook.

One such comment was from 2011 and related to the consumption of alcohol while on standby. Mr Smith's manager and HR had known about this since 2012 but had not done anything about it.

This disclosure prompted a subsequent search by the HR team as part of which they found comments which referred to supervisors in a derogatory manner, as well as referencing alcohol consumption while on standby. Mr Smith was suspended pending an investigation into the Facebook comments. At a disciplinary hearing on 4 June 2013 he was summarily dismissed for gross misconduct--it was found that the comments brought his capabilities into question and left the company open to public disapproval.

Mr Smith's internal appeal was unsuccessful and he brought a claim in the tribunal for unfair dismissal.

What issues did this case raise?

This case raises the issue of whether or not an employee can be fairly dismissed due to conduct on social media platforms and, in particular, where such conduct is historic in nature.

What did the tribunal decide?

The tribunal found that Mr Smith had been unfairly dismissed--they held that the decision to dismiss fell outside the band of reasonable responses because British Waterways Board had not considered the mitigating factors of Mr Smith's prior unblemished record and that they had been aware of the comments for some time.

The Employment Appeal Tribunal (EAT) allowed British Waterways Board's appeal, finding that the dismissal was in fact fair. The EAT held that the tribunal had substituted its own views for that of the employer, when it held they had not given weight to mitigating factors. The EAT also held that the tribunal had made its own finding of fact by inferring that the incident of alcohol consumption had no impact, and that the company had no subsequent issues with employees on standby drinking alcohol.

To what extent is the judgment helpful in clarifying the law in this area?

This judgment is helpful for employers as it clarifies that an employer who fails to respond promptly to an act of misconduct will not necessarily lose the opportunity to take later action. Also, the EAT did not criticise the fact that the British Waterways Board deliberately searched for evidence against Mr Smith.

What should in-house lawyers consider when asked to advise on social media issues?

Most obviously, ensure your business has in place an adequate social media policy and provides training to all employees. Be clear where your business draws the line between personal postings and business postings as this will differ from one business culture to another. One size does not fit all.

Consider regular sign-ups from employees to the social media policy. Many of our US-based clients do this as part of their annual Code of Conduct or compliance training. Some of our UK-based clients do so, as part of pay reviews or the bonus process.

Don't underestimate the value of publicly available information when dealing with employee relations issues. It can be of considerable value to know via LinkedIn that a former employee engaged in litigation with you has a new role. The same is true for employees that may be absent from work on sickness grounds where their Facebook posts are inconsistent with their stated illness. All of these issues are worthy of investigation.

Should your business expect employees to act differently on a predominantly business platform such as LinkedIn as compared to Facebook which tends to be more personal in nature? The press often picks up on inappropriate LinkedIn or Facebook messages sent by employees and adverse PR is a genuine business risk. Proper policies allow you to discipline employees effectively, and perhaps as importantly, justify to senior management that all reasonable preventative steps had been taken.

Mark Minns is a partner at mpm legal solutions Limited, a specialist employment law practice. Mark acts for large international corporations and national and regional businesses across all sectors and deals with all areas of employment law.

 

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