It is now established that tribunal cases involving allegations of social media misuse should be decided by applying normal unfair dismissal principles. In other words:
- There must be a potentially fair reason (in social media cases, this is usually misconduct);
- The employer’s decision to dismiss for that reason must fall within the 'band of reasonable responses' of an employer of similar size and resources; and
- The employer must follow a fair procedure.
Even though cases involving social media will be dealt with applying ordinary unfair dismissal principles, some key themes have started to emerge from the cases heard so far. For example:
- As with any case, your employer must investigate properly and act fairly, just as they would any other disciplinary issue. A knee jerk response is not appropriate.
- Your employer must be able to show a potential risk to their reputation – but it doesn’t usually seem to matter that the potential threat never actually materialised (in other words that in reality, the posting caused no damage to the employer’s reputation). Even so, evidence that hardly anyone saw your posting can be helpful.
- To establish a genuine potential threat to their reputation, your employer must be identifiable from your blog postings. However, there are a growing number of cases in which an employer has managed to persuade an employment tribunal that it could be identified from a posting based on very little evidence.
- The kind of job you do and your seniority can be important, for example if you are in a position of trust.
- The employer’s general attitude to social media can be important. Your employer should act consistently and not come down hard on one employee without justification, while treating others more leniently.
- It is unfair for an employer to tolerate a blog for a long time without taking action and then suddenly to clamp down on it with disciplinary action without warning.
- The nature of the organisation and the kind of business it does can also be important. Organisations that carefully choreograph their online image can be expected to be especially hostile to online blogging. Sadly, an increasing number of employers now fall into this bracket.
- It is generally no defence that you tried to limit sight of your blog to a few select friends. Employment tribunals treat the Internet as a public space.
- The degree of offensiveness of the material is important. Even if any references to your employer are neutral and balanced, if they appear in a blog alongside offensive comments by you about other things in your life unrelated to work, you should expect no sympathy from an employment tribunal.
- The Internet doesn’t have a sense of humour. If you type, for example “I’m drunk on standby, LOL”, don’t expect your employer to see the funny side even if you think it is obvious that you are just joking. Disciplinary consequences – including even dismissal – are a strong possibility.
- The Internet never forgets. Recent cases suggest that you can be dismissed about something offensive that you posted on the Internet a long time ago, even if you have tried to delete it.
- The employer’s rules and policies are very important. What does the employer’s policy say about the scope of the rules and about what will happen if you break them? The rules should be clear, especially because by controlling blogging, your employer is trying to control what you do outside work in the privacy of your own home. There should be no ambiguity in the rules about what is and is not allowed.
- What did the employer do to make sure you knew and understood the policy? Was there, for example, an induction or training?
- The action you take as soon as you realise you are at fault can be important (for example, accepting that you were at fault and apologising, and acting quickly to remove anything offensive – probably after first taking a screenshot, so that you have your own record of exactly what you wrote).
- A willingness to accept a lesser sanction – for example, a warning – can sometimes help you.
- As usual, mitigation factors are important, for example a clean disciplinary record, long service, stress or illness, family problems and so on.
- As a general rule, arguments based on human rights – for example Article 8 (the right to privacy and family life), Article 10 (the right to freedom of expression) and Article 11 (the right to freedom of expression) have not proved particularly useful in employment tribunal cases involving social media. Obviously, if you are dismissed for running a blog containing, for example, political opinions or a record of union activities at work, issues involving Article 11 may well be relevant. Speak to your union. Remember that if you want to claim interim relief, there must be no delay. The claim must be brought within seven days.
- Even if you win a claim for unfair dismissal based on posting unacceptable material on social media, a tribunal is likely to cut any compensation award significantly, on the basis that you contributed to your own dismissal.
In any case, you need at least two years’ service to bring a standard claim for unfair dismissal.
Whatever the case, if you are sacked, or threatened with the sack, the best thing you can do is to contact your union immediately or try to get initial legal advice from one of the sources on workSMART's free help page.