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An interesting query that we often receive on our legal advice helpline relates to Facebook, Twitter or some other social media comments that are made by staff members that someway relate to their employment.
Employers must be careful in the way these comments are addressed and what action, if any, is taken by them in addressing same.
In this article I propose to highlight some examples of how employers have addressed such comments and the cases that have arisen as a result of same and the importance of a social media policy in existence to ensure that employers have the power to address any issues that arise.
A social media policy can be broadly defined as a corporate code of conduct that provides guidelines for employees who post content on the internet, either as part of their employment or in a private capacity. A social media policy can be contained in an employee’s handbook and can also be referred to in their contract of employment.
All staff should sign to acknowledge receipt of a handbook to show that they have received, read and understood the contents of same. This ensures that the staff member cannot allege they were unaware of any governing policies that are in existence.
An employer needs to approach any alleged breach of the social media policy in a professional manner and they must at all times adhere to their disciplinary procedure and ensure that fair procedures are applied at all times. If there is an alleged breach of the social media policy then employers must consider the impact of the comments, statements etc. on the business and how much damage this has or could cause the company’s reputation or brand. Another issue that the employer must consider is the duty that is owed to other employees to ensure that there is no potential bullying and harassment claims or constructive dismissal claims, potential personal injury or defamation claims as a result of any comments or posts made by other employees.
Sometimes the best way to illustrate the impact of the above policy not being in place is to highlight decisions that have been taken by the Employment Appeals Tribunal and courts.
A key case that is often cited when discussing this topic is that of Kiernan v A Wear (UD643-2007). In this case the employee had commented on the social media forum Bebo.
The comment related to one of her managers and was made to one of her friends, however as the pages were public this allowed any person linked to this employee to also see the comments – one of her contacts was in fact her employer and a customer who was also linked to the A wear page viewed the comments and reported same to the employer directly.
As a result the employee was suspended and subsequently dismissed. The employee appealed this decision of dismissal via a solicitor. The appeal was heard and it was upheld by the operations manager of the company, even though they did not engage with the supervisor who the complaints/comments were made about, as it was outlined that there was not sufficient grounds to alter or reverse the dismissal.
The Tribunal heard that the employee had worked for the company for a number of years with no previous disciplinary issues. The employee had expressed her remorse for the comments and apologised for same directly at the case. The employee also expressed that she was having a bad day and that the comments were to a friend’s page and not on the company’s page.
The Tribunal held that the dismissal was disproportionate and as a result awarded the applicant in this case €4,000 as they outlined that she had contributed to her dismissal and that a sanction was required but that dismissal was too severe. This case also highlighted that the lack of a social media policy contributed to the fact that the company was liable to potential claims being taken against them.
A case which involved a successful dismissal is that of O’Mahony v PJF Insurances – in this case the employee made derogatory comments about her manager on Facebook which was visible to the public. In this case proper procedures were followed to invite the employee to a disciplinary meeting and to ultimately dismiss her for her comments as this related directly to the workplace.
The employee applied to the Employment Appeals Tribunal and claimed that she had been unfairly dismissed but the Tribunal held that the dismissal was fair on the basis that the employee had breached the trust and confidence of her employer – the most important factor in this case is that procedures were followed.
A company must also ensure that proper steps are taken to address any issues that may arise in the workplace between employees – the reason for this is that an employer owes each of their employees a duty of care to ensure that they are not bullied and harassed by another colleague.
An example of this matter is that case of Teggart v Teletech Uk Limited NIIT 00704/11 which was heard in Northern Ireland – in this case one employee made offensive comments on his Facebook page while he was outside of the workplace, about another staff member to allege that she was promiscuous.
The comments were brought to the attention of the employer and an investigation was held as the female staff member alleged that she was feeling bullied and harassed. The employer decided that this did amount to bullying and harassment of the female employee and as a result this led to the dismissal of the employee who made the comments.
The dismissal was appealed to the Tribunal and it was held to be fair as the actions amounted to sexual harassment of one employee by another and albeit it did not bring the employer into disrepute it was still unacceptable.
If an employer fails to address an issue such as this, then the effected employee could possibly pursue the employer for a constructive dismissal and perhaps a personal injury case.
As social media continues to grow for all aspects of personal and professional communities it is of the utmost importance that employers have policies in place to address same.
Some of the case law used in this article illustrate that is a policy is not in place or is not followed then this can result in costly awards being made against companies. Therefore some of the most beneficial advices that can be offered on this subject is prepare and take positive steps to introduce a policy and apply same to prevent potentially costly cases.
Vivienne Matthews O Neill is a Barrister at Law at DAS Ireland.
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