ACAS guidance reinforces the need for a social networking policy
Can you fairly dismiss for potentially damaging comments made on a personal social networking site, perhaps even outside the workplace and in the employee's free time?
This remains the question of the moment for HR professionals, together with devising a strategy for avoiding that situation in the first place. We have previously looked at an ET case where an employer fairly dismissed a pub manager for gross misconduct when she insulted customers by name on Facebook.
An employer in another recent ET case (again, not binding on other Tribunals) was not so lucky.
This employer dismissed a team leader for misconduct when she posted comments suggesting that her colleagues, some of whom worked for a very important client of the employer, were not very clever.
The employer based the dismissal on the damage that could have been caused to the employer's reputation with that client. However, it also relied on a policy which merely referred to the danger of breaching confidential information (not the case here) and failed to check with the client whether any damage had in fact been done.
The Employment Tribunal found the dismissal unfair, because it was not within the range of reasonable responses for a relatively mild comment, which did not in any way directly refer to the client, and was made by an otherwise exemplary employee.
ACAS has recently published guidance designed to help employers through the minefield of social networking and the workplace. It includes a number of fact sheets considering the impact of social networking on different aspects of HR, as well as a guide on developing your own policy.
The plight of the employer in this case adds fuel to the argument that such policies must be carefully drawn up to avoid an employer having to rely on an inappropriate provision because of an inadequate policy.
If the employee was using the employer's equipment at the time, there may be far clearer grounds for disciplinary action. If, as is increasingly likely, the employee was using their smart phone or home computer, the need for very clearly communicated rules becomes vital.
Whilst the ACAS guidance is an extremely useful starting point, it is understandably impossible to create a "one size fits all" approach, and the policy must be tailored to the individual business. Different businesses may have a very different stance on the use of social networking sites, some prohibiting use, and others encouraging it for professional networking and business development.
There is more to drafting such a policy that meets the eye. Those employers that do promote the use of business networking sites, such as LinkedIn, will need to include careful provisions relating to employees' contacts which, if the employer is silent, can effectively become an online database of clients which could end up "belonging" to the employee and not the employer.
The policy needs to address what action the employee should take on the professional networking site when the employee leaves the employer. In addition, account needs to be taken of what is and is not permitted under data protection legislation, if, for example, employers want to be able to monitor what is said about their business or clients.
Employers need to be aware that as well as bringing unfair dismissal claims, employees dismissed for misconduct on social networking sites are increasingly likely to rely on arguments that an Employment Tribunal, in hearing such claims, must give effect to the European Convention of Human Rights.
An employer's interference with the right to respect for private and family life, and the right to freedom of expression can in some circumstances be justified (for example in protecting reputation or confidential information), but careful thought will need to be given to this before any disciplinary action is taken.