WHN employment law expert Michael Shroot explores the hot topic, which for most employers will be the enforceability of such contractual terms, and/or whether it is reasonable to discipline and dismiss an employee for their use of social media.

The recent public fallout between Gary Lineker and the BBC over a personal Tweet on a political matter has thrown up the subject of employee use of social media and whether an employer can take action should they feel an employee has crossed the line.

WHN employment law expert Michael Shroot explores the hot topic, which for most employers will be the enforceability of such contractual terms, and/or whether it is reasonable to discipline and dismiss an employee for their use of social media.

A potentially fair reason for dismissal is misconduct under section 98 of the Employment Rights Act 1996 (ERA). Misconduct can also by its nature form the basis of disciplinary action falling short of dismissal. To get to the level of a dismissal for misconduct, this will only be fair if, at the time of dismissal, the employer:

  • Believed the employee to be guilty of misconduct
  • Had reasonable grounds for believing that the employee was guilty of the misconduct
  • Carried out as much investigation as was reasonable.

There also then must be consideration of whether the employer’s decision to dismiss the employee fell within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted.

It has been settled law for some time (since the Thomson v Alloa Motor Co Ltd [1983] IRLR 403 case), that it is fair to dismiss an employee for conduct outside the workplace ‘so long as in some respect or other it affects the employee, or could be thought to affect the employee, when he is doing his work.’

 The decisions in cases involving employees use of social media outside the workplace suggest that:

  • The question of whether the employee’s use of social media is work-related will depend on the facts of the case.
  • Employers should not take a disproportionate view of the damage or potential damage to their reputation, merely because material does not put them in the best light if it comes into the public arena.
  • Information given to employees about corporate image and reputation and an employer’s expectations with regards to use of social media are relevant to the case.

Case law examples

There are several case law examples that shed light on the approach of the courts with regards to use of social media by employees:

  • In Game Retail Ltd v Laws UKEAT/0188/14, the EAT held that a dismissal for offensive, non-work-related personal tweets was potentially fair. The employee was followed by 65 of his employer’s stores and had posted 28 offensive tweets containing expletive and obscene language on his personal Twitter account. The EAT declined to provide any general guidance on dismissal for social media misuse, pointing out that cases are fact-sensitive, and that the usual “range of reasonable responses” test applies.
  • In Smith v Trafford Housing Trust [2012] EWHC 3221, the tribunal commented that employees are generally entitled to promote their religious or political beliefs, providing they do so lawfully, in this case expressing views of gay marriage on Facebook.
  • The dismissal of an employee for posting comments on Facebook was found to be fair in Crisp v Apple Retail (UK) Ltd ET/1500258/11. It was critical to the tribunal’s decision that Apple had made clear in its policies and training materials that protecting its image was a “core value” and had drawn attention to the fact that making derogatory comments in social media was likely to constitute gross misconduct. When considering whether Mr Crisp’s right to privacy had been infringed, the tribunal found that Mr Crisp did not have a reasonable expectation of privacy in respect of his Facebook page, even though its contents could only be viewed by friends, since he had no control over how his comments might be copied and passed on.
  • In Weeks v Everything Everywhere Ltd ET/2503016/2012, an employee was found to have been fairly dismissed after his employer discovered he had repeatedly referred to his workplace as “Dante’s Inferno” on Facebook. When asked to stop doing this by his employer, he refused and insisted that “no fucker can tell me what to do in my personal life”. The tribunal found that the Facebook comments were likely to cause damage to the employer’s reputation. As is similar to the Lineker case the employer had taken steps to prevent repetition, while the employee’s response to this had been unreasonable.

A duty of care in the workplace

An employee owes a duty of care to an employer to be careful how they express themselves in the public arena. The level of that duty depends on the specific facts of the case, for instance: the terms that the employee has agreed to in the contract of employment; the nature of the employment and the nature of the employer as well as the reputational fall-out.

In Lineker’s case, he is employed by a public corporation that is supposed to be an impartial organisation. If he has broken the terms of his contract, then a dispute may arise. However, there are too many unknown facts to make a decision as to whether the way he has been treated is unfair from an employment law perspective.

As with all contracts, it is important that all terms are up-to-date and clear and that both parties adhere to these.

For more advice on this complex area of employment law or to help resolve any work-related disputes, contact Michael Shroot on 0161 761 4611 or michael.shroot@whnsolicitors.co.uk