What can HR professionals and employees do to minimise the risks of social media posts?
Imagine the scene: an aggrieved employee takes to social media to vent about a bad day at work. It may pass the employer by – or it may not. One unlucky member of staff found out that it didn’t three years after the event. The internet does not forget. The future impact on an organisation of negative social media is important, particularly as most people entering into a new business relationship will first and foremost search the internet for recommendations and reviews.
In Creighton v Together Housing Association Ltd, Mr Creighton, an engineer with nearly 30 years’ service working for a housing association, was dismissed when his employer discovered comments that he had posted on his Twitter account three years previously.
A series of offensive comments regarding his employer and certain colleagues included: “Just carry on and pick up your wage, this place is f***ed. It’s full of absolute bell**ds who aint [sic] got any balls.” As a result, Mr Creighton’s employer, Together Housing Association, dismissed him in November 2015 for gross misconduct, in line with its disciplinary policy. Mr Creighton subsequently brought a claim for unfair dismissal, arguing that his tweets were private and posted some two or three years previously.
The employment tribunal did not find in his favour and accepted that dismissal was within the range of reasonable responses open to his employer given the circumstances. The tribunal was also clear that it was irrelevant whether the tweets were years old. The judge stressed that the comments were visible to anyone and, once in the public domain, would be there forever.
This case demonstrates that even the most historic social media posts will still be relevant when it comes to questioning an employee’s conduct. Tweets can be retweeted and Facebook posts can be shared years after the original comments were made; they can also be searched for and found via Google. A negative comment about an employer posted some time ago can have the same negative impact on an employer’s reputation.
Minimising risks
So what practical steps can employers and employees take to ensure they stay on the right side of social media policies?
For employers
Ensure you have a clear social media policy outlining what you consider specifically to be gross misconduct. For example, this could be bringing the company’s name into disrepute or bullying other employees.
Regularly remind employees of your expectations regarding their social media activity, referring to your social media policy.
Be clear to employees that should you come across a negative social media comment by them, whether on their private or work social media, you will investigate the matter and the findings of an investigation could result in an employee being dismissed for gross misconduct.
Ensure any decisions made are well-documented, with clear reasons for your decision.
For employees
Before posting anything on social media – whether it’s a comment about your employer or a photo of a night out – consider what effect it could have on your employment if your boss saw it.
Do not think that just because your account has the highest privacy settings this means only your ‘friends’ or ‘followers’ can see your comments.
Just because a comment was written some time ago, do not assume that it is now in the past and cannot be used by your employer.
Remember that if a comment or photo is out there on social media, potentially anyone can see it and reuse it. Social media is just that – it’s social.
Rhian Radia is a partner, and Sacha Jooma a trainee, in the Hodge Jones & Allen employment law team