Social media and the workplace: what should employers consider when dealing with derogatory and damaging posts?

Alex Murray

Around 83% of the UK population are active social media users. It comes as no surprise then that social media continues to have an influence in the workplace. As a result, employers must consider how to handle employee use of social media, both whilst they are at work and away from the workplace.

Employment law is evolving in this area which makes it all the more important for employers to assess the impact that social media may have on their business. Ultimately, where problems arise relating to social media posts, the employer should determine how to deal with the matter proportionately based on the individual circumstances. The recent case law set out below addresses this area.

Omooba v Michael Garret Associates 2024

The claimant, an actress, had been due to perform in a production of The Color Purple in which she was to play a lesbian role. She had previously posted a homophobic comment which resurfaced following a retweet. Following her dismissal, she claimed for religion or belief discrimination, harassment and breach of contract. In rejecting her appeal of the original Employment Tribunal (ET) decision, the Employment Appeal Tribunal (EAT) decided that she was dismissed because of the effect of the adverse publicity on the cast, the audience, the producers reputation and the productions success rather than because of her expression of her belief.

Spence v Sainsbury’s Supermarkets Ltd 2019

The ET held that there was no fair reason for dismissal where the employee called their boss a “young idiot” on Facebook and questioned whether the disciplinary manager was in a relationship with their boss. The ET raised the importance of employers giving consideration to the appropriate sanction whilst keeping an open mind and highlighted that lack of social media training went against the respondent.

Plant v API Microelectronics Limited 2016

It was held that the claimant’s dismissal regarding derogatory Facebook comments had been fair. It was important that the respondent had a social media policy which set out examples of unacceptable behaviour which could lead to disciplinary action, potentially resulting in dismissal. The policy also reminded employees that comments on social media sites may not necessarily be deemed as private.

Game Retail Ltd v Laws UK 2014

The employee was dismissed after tweeting offensive comments. The ET made an initial finding of unfair dismissal on the basis that the tweets were made on his own phone, outside working hours and for private purposes. The EAT upheld the respondent’s appeal, stating that the question of whether the post related to private usage had not been properly tested. It was an important consideration that the claimant followed 100 respondent stores, 65 stores followed him and he had not restricted his account settings. The EAT stressed that cases in this area are fact-sensitive.

Crisp v Apple Retail (UK) Ltd 2011

The ET held that the employee’s dismissal relating to Facebook comments was fair. It was critical that Apple had made clear that protecting its image was a core value and that any derogatory comments made on social media were likely to amount to gross misconduct. Despite the fact that only his friends could see his post, the claimant could not have a reasonable expectation of privacy as he had no control over how his comments might be copied and passed on.

The case law highlights important points, such as:

1. whether the employee’s social media use is work-related will depend on the facts;
2. employers should take a proportionate view of the damage to their reputation or impact on their business when determining appropriate sanctions;
3. employers should balance their business interests against an employee’s right to privacy, freedom of expression and other employment rights; and
4. information provided to employees about corporate image and reputation as well as expectations regarding use of social media are relevant.

Summary

Employers should aim to protect their reputation and confidential information when dealing with derogatory or damaging social media posts. Proactive steps can be taken such as implementing social media and recruitment policies, covering social media breaches in disciplinary policies and holding social media training. Obtaining legal advice will assist to achieve the correct measures and reduce the risk of employment claims being brought against employers relating to the decisions they make regarding employee use of social media.

Contact Alex Murray.