Social media and employment: case study 2

Lloyd Davey of Osborne Clarke continues a series of articles on the impact of social media on employers with a second case study. The case study looks at a situation in which two employees' use of social media risks bringing their employer into disrepute. 

PoshNosh is a high-end catering company that specialises in catering for the corporate market. When they are working at a client event, the catering staff wear the PoshNosh uniform, which includes a shirt featuring the company name and a distinctive champagne glass logo. A member of the catering staff has contacted the HR department to say that she is concerned about a picture that has been posted by one of the company's chefs on his Facebook page. The picture was taken outside work time and shows the chef, Brian, in his PoshNosh shirt making an obscene gesture, with the comment "How I feel after a long night at work!" The client venue at which Brian was working on the evening the photo was taken is clearly visible in the background. When PoshNosh raises the matter with Brian, he immediately points out that the photograph was taken and posted during his personal time after his evening shift had finished and says that what he posts on his own Facebook page is none of the company's business. The company does not have a social media policy. Nor does it mention social media use in its disciplinary procedure.

Can PoshNosh take disciplinary action against Brian?

Although Brian was not working when the photo was taken or posted, its posting may be a disciplinary offence. He was wearing his PoshNosh uniform and the client's premises are visible in the photo. This could result in damage to the reputation of both PoshNosh and its client.

PoshNosh should write to Brian to explain that it is investigating the matter, and obtain a copy of the picture that he posted on Facebook (to preserve the evidence). The company should clearly explain its concerns about the photo to Brian and he should be asked to remove it (and any name tags) from his Facebook page immediately. If he refuses to do so, PoshNosh should contact Facebook to ask for the photo to be removed. Most networking sites have an online system for reporting problem postings and for requesting their removal and Facebook may remove content if it violates its Statement of rights and responsibilities (on its website). If, after its investigation, PoshNosh decides that disciplinary action against Brian is appropriate, it should invite him, in writing, to a disciplinary hearing and provide him with details of the allegations and any evidence on which it intends to rely. It should notify him of his right to be accompanied at the meeting by a colleague or trade union representative. PoshNosh should take care to follow both its disciplinary policy and procedure and the Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website) to ensure that it follows a fair process.

As PoshNosh does not have a social media policy or make reference to misuse of social media in its disciplinary policy, it will be more difficult for it to take disciplinary action against Brian for his Facebook posting, than if it had covered this type of conduct in a policy. However, his actions may well breach the company's disciplinary policy in any event, on the ground that they could bring the company and/or its client into disrepute. His conduct could be dealt with as a breach of the duty to maintain trust and confidence between an employee and his or her employer. Whether or not dismissal is a reasonable response will depend on the circumstances, in particular how PoshNosh has dealt with comparable incidents in the past, any mitigating circumstances, Brian's service record and whether or not the company's disciplinary rules make clear that conduct that could bring it into disrepute could result in dismissal.

Following this incident, PoshNosh should put in place a policy that clearly stipulates the parameters for employees' use of social media. This policy should prohibit:

• the making of negative or defamatory commentary about the company, its clients, employees or competitors;
• the disclosure of confidential information;
• the use of social media in a way that could bring the company or its clients into disrepute or otherwise be damaging to their reputation; and
• bullying, harassment or discrimination through the use of social media.

The policy should apply to business and personal use of social media, whether it is accessed through the company's information technology systems or employees' personal computers or smartphones. The policy should state that breaches of it will be treated as a disciplinary offence. PoshNosh's other policies, including its equal opportunities, anti-harassment and bullying, disciplinary and grievance policies should be updated to incorporate the restrictions on the use of social media.

PoshNosh puts in place an "acceptable use of technology policy", which includes guidelines on employee use of social media. The policy is added to the company's staff handbook and hard copies are given to all employees, who are required to sign and return a copy of the policy to the HR department. The policy makes clear that it applies to business and personal use of technology and that any content that could bring the company or its clients into disrepute is prohibited and will be dealt with under the disciplinary policy. Employees are warned that defamatory statements can create legal liability for both PoshNosh and the employee making the statement.

Following the introduction of the policy, it is reported that one of the company's sales representatives, Jack, has posted on his personal Twitter account "Off to No Frills Ltd to negotiate financials with their contracts manager. Will steer clear of their staff canteen. Don't want food poisoning, got a date tonight!" No Frills is a target client for PoshNosh and is expected to generate considerable revenue for the company.

Can PoshNosh take disciplinary action against Jack?

Jack's tweet is inappropriate and a breach of PoshNosh's acceptable use of technology policy. It also discloses confidential information about his meeting with No Frills and could be a defamatory statement tending to lower the public estimation of No Frills and the catering company that already supplies it.

PoshNosh should address Jack's tweet in accordance with its disciplinary policy and take appropriate action. Employers with a clear social media policy are better placed to deal with technology misuse where either the employer or a third party is adversely affected. In Preece v JD Wetherspoons plc ET/2104806/10, Wetherspoons was found to have fairly dismissed an employee for gross misconduct after she made inappropriate comments on Facebook about Wetherspoon's customers who had subjected her to verbal abuse in one of its pubs. The employee was found to have breached the company's policy governing the use of social media even though she believed her Facebook privacy settings meant that only her friends could see her comments (when in fact her comments were more widely visible).

PoshNosh could be held vicariously liable for any reputational damage that Jack's tweet causes No Frills or its current catering supplier. PoshNosh should ask Jack to delete the tweet immediately to avoid replies and retweets, which would spread the tweet to a wider audience. If he refuses to do so, PoshNosh should contact Twitter to try to get the posting removed (see the How to report violations page of the Twitter website for more details). If employees post defamatory comments, whether they relate to their employer or a third party, they can open up liability for employers (as well as the employee making the comment) even if the comments are unauthorised by the employer.

Jack's tweet is not so serious as to amount to gross misconduct. However, it does bring PoshNosh into disrepute and also discloses the existence of the meeting with No Frills. This is a potential breach of confidentiality. Depending on the severity with which PoshNosh views the incident, it could opt to have an informal discussion with Jack to explain the consequences of his actions and warn him that future transgressions will result in disciplinary action. However, if the company feels that a more formal penalty is required, particularly given its recent implementation of the acceptable use of technology policy and the need to set a good precedent in how it will deal with breaches of this policy, it should follow its disciplinary procedure. If it decides to impose a formal disciplinary penalty, a written warning would be within the band of reasonable responses open to PoshNosh.

The final topic of the week article in this series on social media and employment will be a checklist of measures that employers can take to reduce the risks to their business from employees' use of social media, and will be published on 22 August.

Lloyd Davey (lloyd.davey@osborneclarke.com) is a senior associate in the employment team at Osborne Clarke.

Further information on Osborne Clarke can be accessed at www.osborneclarke.com.