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Unfair Dismissal and Social Media: When is Dismissal Justified?

The rise of social media in our social conscience seems to continue unabated, and now not a day goes by without social media hitting the headlines in one way or another. Nick Branch looks at social media and employment issues.

Whilst many of the most prominent stories concern celebrities and often very obvious cases of abuse, behind the scenes the case law surrounding social media and unfair dismissal continues to grow. 

Social media is a powerful tool which allows businesses to converse directly with their customer base. However employee use of social media comes at a price – both in terms of lost productivity in those firms which allow free Internet access during work hours, and in potential damage to reputation if an employee posts a loose comment or derogatory remark about their employer online.  

Fair dismissal for inappropriate use of social media 

Employment tribunals have shown a willingness to rule that dismissals are fair providing a clear policy on social media is available and the dismissal is a reasonable response to the infringement.  

Crisp v Apple Retail (UK) Limited (unreported ET/1500258/2011) demonstrates many of the important consideration which employment tribunals make when deciding on whether a dismissal for use of social media is unfair.

In Crisp, the tribunal ruled that an employee was fairly dismissed after he had posted negative comments about his employer on his private Facebook page. The tribunal heard that Apple has a clear policy on social media which prohibits employees from making comments or acting in any way which might damage their brand.  Employees are given training to the effect that they must be mindful of the way they present themselves in public, including online, and that comments made outside of work which affect the company image are still covered by company policy. The tribunal found that dismissal was within the range of reasonable responses to Mr Crisp's negative comments online. 

Privacy and human rights 

One of the central arguments brought by the claimant in Crisp, and in other similar cases such as Preece v JD Wetherspoons PLC (unreported ET/2104806/10), is that comments posted online are 'private'. Social media sites allow users to restrict access to their content in such a way that only certain specified users may freely view that content.  

Section 6 of the Human Rights Act 1998 obliges public bodies (in this case employment tribunals) to act in accordance with the provisions of human rights law. In cases such as these a key consideration is whether dismissal infringes an employee's right to privacy under the ECHR, Article 8. 

Mr Crisp argued that his comments were posted only to his friends, and further produced examples of derogatory comments from other employees' private pages which had not resulted in dismissal. His argument being that dismissal was therefore clearly unfair. However this reasonably constructed argument was in essence his undoing. In producing examples from other employees' private pages, he neatly demonstrated that when a comment is posted online, even privately, it is almost impossible to control where that information ends up.  

Freedom of expression 

Employment Tribunals also consider whether a dismissal infringes an employees' right to freedom of expression. We fear living in a totalitarian state, and for some employees a highly restrictive social media policy may serve to generate that impression. 

The right to freedom of expression under the ECHR, Article 9 is subject to limitations, most notably in this case in the 'protection of the reputation or rights of others'. In Crisp case, the tribunal ruled that Apple could fairly limit Mr Crisp's right to express himself freely where that expression was damaging or potentially damaging to its reputation as a business. 

Conclusion 

The case law in this area contains many examples of employer's acting unfairly in dismissing an employee for a comment made online. As well as rigorously following appropriate disciplinary procedures, the case law shows that dismissal must be a reasonable response in the circumstances of each case. 

Navigating a way through this potentially difficult field is made somewhat easier by guidance recently released by ACAS on how to draft an appropriate social media policy. However, businesses must surely still rely on swift and up-to-date legal advice to ensure that their disciplinary actions are within the law. 

Nick Branch received his LLB from the University of the West of England in 2004 before going on to work as a director of two property-related businesses. Nick is currently studying to become a doctor on the fast-track graduate entry medicine course at King's College London and often writes on law-related topics for Contact Law.

 

Published: 28/08/2012

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