We are now in an age where the arts of conversation and letter writing have been displaced, if not lost, in favour of online comment and social media posts. TikTok, Twitter and Facebook are now commonplace destinations for individuals to air their views and grievances against whatever and whomever has upset them. Management, colleagues, customers and the general public are frequently considered legitimate targets.
In the past 12 months in particular, a pervasive undercurrent of anti-work sentiment has emerged on social media, epitomised by recent trends such as the ‘quiet quitting’ and ‘lazy girl job’ movement. These trends challenge the conventional belief that employees should endeavour to go the extra mile at work, and instead encourages readers to dial down their efforts and do the bare minimum required to keep their job.
The evolution of social media has transformed how employees share their workplace experiences, and what was once confined to casual coffee chats with friends now finds a public platform online. In addition to venting about work and openly rejecting certain work conventions, it is now common for employees to share their encounters with difficult customers or colleagues, sometimes in the form of dramatised skits which are often exaggerated for comic effect.
» The evolution of social media has transformed how employees share their workplace experiences, and what was once confined to casual coffee chats with friends now finds a public platform online «
While cathartic for the creator and entertaining for the viewer, for the employer, posts, pictures and videos — some of which can amass hundreds of thousands of views — could raise issues regarding privacy and confidentiality, and cast them in a bad light.
The idea of employees running amok on social media has long been a potential concern for employers to reckon with. However, it would appear that in 2023, employees are more confident than ever in their right to openly express themselves, emboldened by the notion that their personal account activity is essentially none of their employer's business, and that they won't face any repercussions as a result.
But does this belief align with reality, or can employers seek to rein in this recent surge of unrestrained online expression?
Taking action against employees
In recent years, employment tribunals have had to navigate claims where employees have been dismissed for alleged breaches of their employer's social media policy, particularly in relation to content posted on their personal social media accounts.
Whether the post in question involves criticism of the employer, derogatory comments about colleagues, or potentially offensive views, tribunals have cautioned employers against overreacting to alleged misuse of social media.
That is not to say that employers can never fairly dismiss an employee in these circumstances — indeed, case law continues to show that they can. However, in deciding whether a dismissal was fair, a tribunal will consider a number of questions:
Did the post damage the employer's reputation?
Case law has established that the mere risk of damage to an employer's reputation is sufficient to justify dismissal in some cases; in other words, actual harm to the reputation need not be proven. Nevertheless, employers must exercise judgment in assessing the actual existence of such a risk.
» Whether the post in question involves criticism of the employer, derogatory comments about colleagues, or potentially offensive views, tribunals have cautioned employers against overreacting to alleged misuse of social media «
In Taylor v Somerfield Stores Ltd, a video emerged showing an employee being struck on the head with a plastic bag filled with other plastic bags while in work uniform. In concern for its reputation, the employer decided to terminate the employee who had shared the video. However, the dismissal was found to be unfair at tribunal (Employment Rights Ireland, 2015). Several factors contributed to this decision, including the fact the video had received only a limited number of views and the company's identity was not discernible from the footage. As such, there was little threat to the company's reputation, and the dismissal lacked justification.
Did the dismissal infringe on the employee's right to privacy?
A key consideration for the courts is whether dismissal infringes on an employee's right to privacy under Article 8 of the European Convention of Human Rights (ECHR). When content is shared in a private or restricted online setting, employees may have a stronger expectation of privacy. However, not much of social media is actually private.
Illustrating this point, in Teggart v TeleTech, a customer service employee who made obscene comments about the promiscuity of a female colleague on Facebook was found to have been fairly dismissed. Although his comments didn't directly impact the employer's reputation, the Tribunal found that they did constitute harassment which amounted to gross misconduct, thereby justifying the dismissal (Employment Rights Ireland, 2015).
Notably, the employee attempted to argue a violation of his privacy rights under the ECHR; however, since the comments were made publicly, this argument was ultimately rejected. Comments on public pages have repeatedly been found not to be ‘private’ for the purposes of Article 8, even if social media settings are set to private, due to the ease in which online posts can be copied and passed on.
Did the dismissal infringe on the employee's freedom of expression?
Courts will also consider whether a dismissal infringes an employee's right to freedom of expression under the ECHR, when weighed against the employer's legitimate interests. Even beliefs that are offensive or shocking may be protected under the ECHR (although the manner in which they are expressed may be justifiably restricted).
Perhaps the most famous example of this is the case of Maya Forstater, a researcher whose employment was terminated over her view, conveyed through a series of tweets, that transgender women could not change their biological sex. Despite being potentially offensive, her gender-critical beliefs fell within the scope of the ECHR's protection, and the EAT held that her employer's decision not to renew her contract was discriminatory (Siddique H. 2022).
In particular, the EAT concluded that the tweets were simply an expression of Ms Forstater's belief; they were not objectively unreasonable and not sufficient enough to justify detrimental action by her employer. This was reinforced by the fact that Ms Forstater had also added a disclaimer to her Twitter profile stating that her views were her own and agreed not to discuss her beliefs in the workplace, which the EAT said made the employer's response even less proportionate.
Was there a clear policy in place?
If so, and the employee failed to follow it, it is more likely that a court will find the dismissal fair. Again though, the policy should not be too strict in its stipulations or encroach too much on the employee's private life.
In Crisp v Apple, an employee was fairly dismissed for posting negative comments about his employer on his private Facebook page. Apple's social media policy clearly prohibited such actions, and Mr Crisp had also received training which underscored the importance of presenting oneself positively online. The training also reiterated that comments made outside of work which affect the company image were still covered by company policy. Accordingly, the tribunal ruled that his dismissal was fair.
Each case will turn on its facts. In addition to the above, a tribunal may evaluate factors such as the seriousness of the conduct, the employee's role and seniority, and any mitigating factors presented by the employee. Ultimately, whether a dismissal is found to be fair or not will depend on whether it fell within ‘the range of reasonable responses’ open to the employer. That is, did the employer's decision fall within a spectrum of fair and reasonable actions that a reasonable employer might take in similar circumstances?
Preventing and addressing problematic personal posts
There are a number of proactive steps employers can take to prevent social media related problems, promote the responsible use of social media inside and outside of work, and minimise legal liability if there is a decision to dismiss an employee for reasons related to their social media activity.
Put in place a clear social media policy
While employers may have limited control over employees' personal social media accounts, they can establish guidelines and policies that extend to employees' online behaviour outside of work in order to protect their interests and maintain a positive work environment. This can include expectations of not sharing confidential information, refraining from making disparaging remarks about the company, customers or colleagues, and avoiding behaviours that could damage the employer's reputation. The key is to strike a balance between protecting the company's interests and respecting employees' rights to privacy and freedom of expression. Once a policy is in place, it should be clearly communicated to all employees so that they cannot feign ignorance later down the line.
Provide ongoing training
Employers should continuously educate employees about the social media policy, placing a strong emphasis on responsible online behaviour and the potential repercussions of inappropriate posts. Employees should be encouraged to exercise caution and think twice before sharing any content related to their work or colleagues.
Handle issues proactively
Where an employer does take issue with what an employee posts on their personal social media account, it should be addressed proactively and privately. A constructive conversation needs to be initiated with the employee to understand their perspective and express the employer's concerns. The ideal is open communication and the seeking of a resolution rather than resorting to immediate disciplinary action. This approach can help prevent minor issues from escalating into major disputes and maintain a positive employer-employee relationship.
Healthcare has its own cases
Back in 2013, The Register reported that ‘more than a thousand NHS staffers have been slapped down for their use of social media and apps since 2013, with some even posting about patients’ (Hill R, 2018).
Freedom of Information legislation was used to find that at least 65 workers in the NHS had lost their jobs through social media-related incidents. Yorkshire Ambulance Service said that 62 people had faced disciplinary proceedings following their use of social media in the previous five years. University Hospital Southampton NHS Foundation Trust noted 47 cases, and Manchester University NHS Foundation Trust noted 37.
In June 2023, ITVx reported that a healthcare worker who liked and shared a video of an offensive song about murdered County Tyrone woman, Michaela McAreavey, had a claim that she was unfairly sacked from her job dismissed (ITVx, 2023).
The industrial tribunal panel described the streaming of the video in an Orange Hall as a ‘truly disgraceful event’ and ruled that the Southern Health and Social Care Trust was entitled to dismiss Rhonda Shiels.
There was widespread condemnation after the footage, which was live streamed, showed a number of men singing a song which appeared to mock Ms McAreavey, who was murdered while on honeymoon in Mauritius in 2011. Shiels had been employed by the Southern Trust as a healthcare assistant for five years. While the footage was livestreamed by Shiels' partner, she had liked and shared the video on her Facebook account.
Summary
Social media is with us to stay, which means that employees need careful management in relation to its use. It should be said that just because employees have rights, that does not mean that employers are barred from acting if a serious breach occurs. But as cases have illustrated, that action needs to be proportionate and fair given the circumstances.