As we’ve just started blogging, an article on the use of social media and how employers should try to regulate it seems an apt place to start!

The use of social media has risen dramatically in the last few years.  Not that long ago not many people had heard of Facebook, Linked In, Twitter and the like – but these sites are now used everywhere, 24/7, by very many people – more so as they are accessible all the time from mobile phones.  Can you be sure your employees aren’t using such sites whilst at work?  Do you know what they may be posting on such sites that could adversely affect your business?  Have you taken any steps to regulate the use of such sites by employees whilst at work?  

The case of Preece v JD Wetherspoons plc (ET/2104806/10) concerned a pub manager who was fairly dismissed by her employer for gross misconduct after making inappropriate comments on Facebook whilst at work about two customers who had verbally abused and threatened her.  The Employment Tribunal found that the manager was in breach of the employer’s e-mail and internet policy, which specifically referred to employees’ use of social media such as Facebook whilst at work.

Miss Preece had been subjected to verbal abuse and physical threats from two customers and consequently asked the customers to leave the pub.  Shortly after, Miss Preece received several abusive phone calls, believed to have been made by the customers’ daughter.  Following the phone calls, whilst Miss Preece was still on duty, she made several posts on her Facebook account about the earlier incident and made a number of negative comments about the customers.

Wetherspoons was contacted by the customers’ daughter who complained that offensive comments about her mother had been made “very public”.  Miss Preece was invited to an investigatory meeting at which she admitted that she had made some comments on Facebook whilst she was supposed to be working.  She said that she understood that her actions “brought her into conflict” with Wetherspoons’ E-mail, Internet and Intranet Policy (the Policy) but explained that she thought that her privacy settings meant that only work and school friends could see her communications on Facebook.

Miss Preece was invited to a disciplinary hearing and was subsequently dismissed for gross misconduct.  Wetherspoons found that Miss Preece had breached the Policy and that her conduct had lowered the reputation of Wetherspoons.  Miss Preece appealed internally against the decision but was unsuccessful and so brought a claim for unfair dismissal.

The Employment Tribunal dismissed Miss Preece’s claim, finding that Wetherspoons had correctly investigated the matter and that the sanction of dismissal fell within the range of reasonable responses available to a reasonable employer.  The Tribunal went on to find that, despite Miss Preece’s belief about the privacy of her communications, her activities were in the public domain.  Whilst she had a right to freedom of expression under Article 10 of the European Convention on Human Rights, the action taken by Wetherspoons was justified in view of the risk of damage to its reputation.  It was deemed clear from the Facebook entries, when read as a whole, that Miss Preece and her friends were discussing work and specific customers in breach of Wetherspoons’ Policy.

The case highlights the importance of having a properly drafted and up-to-date policy regarding the use of social media in the workplace.  The regulation of social media usage in the workplace is also important for various other reasons – potential discrimination claims, use of confidential information by employees, loss of productivity, loss of reputation and privacy.  The risks have the potential to result in claims being made against the employer as well as damage to the employer’s business.  There could also be potential breaches of the Data Protection Act in respect of the use of employees’ data.

The cost to employers in time, legal costs and compensation awarded has the potential to be substantial.  Blocking access to any social networking site at work may seem the obvious answer, but even then employees could still use such sites outside of work and may post comments that could still affect the employer’s business.

Therefore the benefit of a properly prepared social media policy to minimise the risks set out above cannot be underestimated.   Thompsons Solicitors can assist with advising on social media usage in the workplace and the preparation of a social media policy for your business.  Please do not hesitate to contact us for further information.