• 19 OCT 15
    Can you dismiss an employee using social media as evidence?

    Can you dismiss an employee using social media as evidence?

    The lines between public and private use of social media have become extremely blurred. If staff misuse the likes of Facebook, Instagram and Twitter it could harm your brand or organisation’s reputation, especially if their accounts are associated to your business.

    Issues are also now frequently arising in relation to employment law, particularly in situations relating to recruitment, misconduct and dismissal.

    As a business owner you can’t be too hasty. If you spot a worker being offensive about another staff member, criticising the business or showcasing they are out enjoying drinks when they are meant to be at work, you can’t simply remove them from the business.

    In 2013 a long-serving employee of Game Retail Ltd used his personal Twitter account to post a number of abusive and offensive tweets. Game dismissed Mr Laws for gross misconduct but he brought a claim to the employment tribunal and argued that his tweets were only ever posted in a personal capacity. The employment tribunal agreed and found the dismissal unfair.

    To protect your business, you must establish adequate social media policies and practices. As with any employment law issue, it is always the contract and policy which makes it clear from the outset what is acceptable and what will result in a disciplinary or dismissal. Your policies also need to be clear on your right to look through your employee’s private postings.

    The law will continue to develop in this area and so it’s important to keep up to date with your rights as a business owner. In the recent case of the British Waterways Board v Smith [2015] UKEAT/0004/15, the timing and history of social media posts were highlighted.

    The Court found that an employee who had posted various comments on social media and chat rooms that were in breach of various policies was fairly dismissed despite the postings being a number of years earlier.

    The effect of this is two-fold. Firstly, employees need to be very careful with what they have posted in respect of their employer and what they have been doing outside of the work place that could affect the employer’s reputation.

    Secondly, when dismissing an employee you can consider a trawl of social media outlets, to add weight to the fairness of the dismissal and minimise the potential for any successful claim. You can search for evidence against the employee on a work computer or by looking back on their social media platforms but ensure that any action you take is clearly permitted in your policies or it could result in the employee taking action for unfair dismissal or a breach of the Data Protection Act 1998.

    For further information on this complex area of employment law, please contact Michael Shroot on 0161 7618087 or email Michael.shroot@whnsolicitors.co.uk