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Even if we are only slightly computer literate, we are probably aware of social media and the growing part it plays in home and working life.  You only have to look at Twitter and you can find comments (‘tweets’) on there from the President of the United States, our royal family, various levels of government in the UK, large small and medium sized businesses, sports people, film stars, musicians – well, the list goes on.  Even I have a Twitter page – not that I am very skilled at using it.  Employment law is what I am good at, and social media less so.

But what happens if an employee puts an unwise comment on a social media page such as Facebook or Twitter?  Or uploads a photo on Instagram that shows their employer in a bad light.  What can be done by the employer?  Social media is not work, and is not (or should not) be accessed in work time unless it is part of the job.  It is a social thing, isn’t it?  Can the employer dismiss someone fairly for this?

As an employment solicitor my working life is partly driven by interesting cases that are summarised in reports, mostly from the appeal courts.  There haven’t been many cases recently on social media issues.  Therefore I am writing this to keep it in your mind as a topic you need to continue to consider.

It is well established that social media comments – whether they are posts on Facebook, tweets on Twitter or anything else for that matter, would fall to be considered within a disciplinary procedure.  We go back to 2014 (a relatively long time in employment law!) to find the case of Game Retail Ltd v Laws that gives us the principles to apply.  The claimant’s dismissal for tweeting offensive posts was initially found to be unfair in the Tribunal.  The claimant had not registered on Twitter as part of his job but principally in order to communicate with acquaintances outside work.  He used his own mobile phone and tweets concerned matters that were nothing to do with work. The claimant had only engaged in tweeting the offensive material in his own time and not in work time. He did not dispute that some of the tweets were offensive and provided explanations for some of them.

But the employer appealed the finding of unfair dismissal, and the Appeals Tribunal overturned the decision and sent the parties back to a fresh Tribunal for the case to be re-heard.  The employer was acting within the range of reasonable responses in considering them in a disciplinary and ultimately in the decision to dismiss.  Therefore the employer’s decision to dismiss was potentially reasonable.

I frequently am asked for advice by both employers and employees on this topic.  I am meeting with another new client next week to advise on this.  We all must be aware that it is not just a snapshot in time.  A comment or tweet is published to the wider world and not just those to whom we have chosen to connect.  It is also very difficult to remove a comment once it is ‘out there’.

If you want further advice on this interesting topic, why not contact us.

 

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