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Employees - and employers - should be careful when using social media

Employees are ever more frequently finding themselves in trouble as a result of their social media activities. Two weeks ago a tweeter was convicted of sending a menacing electronic communication and fined after expressing his dismay that his local airport was shut in a tweet, which threatened that he would "blow the airport sky high".

The employee also lost his job.  While criminal prosecution may be a rare consequence of using social media, disciplinary action by employers is not.  There are many examples of employers taking action, up to and including dismissal, as a result of activities on YouTube, Facebook and similar sites.  Employees' social media activities are forcing employers to consider what rules apply when disciplining in such circumstances.  At the same time, employers are frequently finding themselves in unfamiliar territory and often getting it wrong.

Although the principles of fairness are the same, regardless of whether activities are online or off, the consequences of online activity can often be more serious.  Take the Twitter case, for example: the same comment about blowing up an airport made to a third party face to face would be very unlikely to result in a criminal prosecution, unless perhaps the third party was an airline operator or the police.  So why should the fact that it was a tweet justify dismissal?  

In most cases employers will have rules regarding what conduct is and is not permitted.  If the rules are clear and reasonable, and clearly communicated to employees, then disciplinary action taken for their breach is likely to be fair, if a fair procedure is followed beforehand.  This applies whether the conduct which breaches the rule is at work or off duty.  Although employees do have the right to respect for their private life, they owe a duty of loyalty, reserve and discretion, according to the European Court of Human Rights, which applies online and offline, at work and off duty.     

As well as being in breach of disciplinary rules, disciplinary action for online activities can also be justified on the grounds that it brings the employer into disrepute.  But this can be tricky ground for an employer, as illustrated by previous cases regarding both offline and online behaviour.  For example, a football hooligan who was imprisoned in France for his behaviour towards rival fans was dismissed after a press report mentioned his employer.  In another case, a supermarket employee posted a video on YouTube showing two colleagues hitting each other with plastic bags filled with plastic bags.  In both cases the employer tried to argue that the employee's activities brought the employer into disrepute, but in both cases the courts held that the dismissal was unfair.

In the supermarket case the tribunal took into account that very few people had actually watched the video on YouTube, and no loss had been caused as a result.  Accordingly, if an employer wants to argue that an employee's conduct has brought the employer into disrepute then it will need to show some actual damage, or be able to point to some reasonably likely damage, to its reputation.  The nature of the employee's role within the employer's organisation will be relevant when considering this issue.  For example, in a case last year the court held that the Probation Service fairly dismissed a probation officer responsible for dealing with sex offenders and their victims who in his spare time ran an internet company selling bondage, domination and sado-masochism merchandise on the grounds that his extra-curricular activities were inconsistent with the duties of a probation officer dealing with victims of sex crimes, and would bring the Probation Service into disrepute.

Whether the airport tweeter should have been sacked is open to debate.  It was reported that he had lost his job because of the prosecution, rather than because of the tweet itself.  Many employment contracts provide for summary dismissal if convicted of any criminal offence (other than an offence under any road traffic legislation for which a fine or non-custodial penalty is imposed).  On the other hand, the tweet was only seen by 600 followers and was classified as not-credible in threat terms by the airport, so the decision to prosecute could seem very harsh.  What this case and the many other cases illustrate is how careful everyone, not just employees, needs to be when using social media.   

Ann Bevitt, partner and head of employment and data privacy group, Morrison & Foerster