In our last post, Social Media and Employment, we commented that if employers are to implement a social media policy then it needs to fit with their business. We finished off by saying that such a policy needs to be interpreted properly, and that the employer still needs to act reasonably.
We looked at the risks of not having a properly prepared social media policy, and in turn the reasons why employers should have such a policy, in our post Social Media in the workplace – do you have a policy?
However, simply having a policy in place isn’t necessarily going to avoid the risks identified in that post. Employers must still act reasonably in enforcing a policy. The case of Stephens -v- Halfords plc earlier this year demonstrates the point (see xPert HR for the summary) – a Facebook page criticising the employer was not held to justify dismissal.
The summary records that Halfords had a social media policy which prohibited employees making any comments on social media sites that were not in the best interests of the company or that encouraged dissent amongst its employees.
Mr Stephens was a deputy store manager. Halfords decided to implement a redundancy programme and went into a collective consultation process. Mr Stephens was aware that the consultation process was confidential until such time as the consultation process had been completed, at which time all employees would be aware of the proposals. Mr Stephens was off sick with stress at the time, but attended the meetings. He put a comment on Facebook which was entitled “Halfords workers against working 3 out of 4 weekends”.
He subsequently realised that it breached the company’s social media policy and promptly removed the comment. Nevertheless the comment/posting came to the attention of Halfords, who instituted disciplinary proceedings against him. He apologised for posting the comment and said he wouldn’t act in the same way again. However Halfords summarily dismissed him for breach of trust for posting confidential information.
He issued proceedings for unfair dismissal and was successful. Halfords’ decision to summarily dismiss him was held by the Employment Tribunal not to be within the range of reasonable responses – no reasonable employer would have taken that step in the circumstances. He had apologised and removed the comment. He had also waited to post the comment until such time as he thought the company’s redundancy proposals were in the public domain. He had been suffering from stress at the time and was unwell.
The lesson? It’s not enough to simply have a social media policy and believe that, by virtue of just having it in place, it will protect you from any claims. Employers still need to act reasonably when disciplining employees and enforcing policies.
The solution? A properly drafted social media policy, specific to your business, will make it much easier to interpret whether certain actions breach the policy and how they should be dealt with – therefore making it much easier for you to act reasonably and be seen to act reasonably in your enforcement of any such policy. The case of Preece -v- Wetherspoons, mentioned in our previous post, reinforces that view – the fact there was a clear policy in place allowed the employer to dismiss fairly when it was breached.
In short, some sort of policy is better than no policy at all – especially given the rise in use of social media and the increased likelihood of “social media incidents” occurring in the workplace. However a social media policy needs to be specific to your business, your aims and objectives in connection with the use of social media within your business, as well as fitting in with existing employment policies.
Thompsons Solicitors can advise on, and assist with, the preparation of a social media policy tailored to your business and your requirements. Please do not hesitate to contact us for further information.