Social media use: a practical guide

The use of social media in the workplace has become more and more prevalent, and inevitably there have been an increasing number of employment tribunal cases dealing with related issues. The recent employment tribunal case of Crisp v Apple Retail demonstrates the importance of an employer giving careful consideration to how it will respond to the risks associated with the use of social media, in particular the importance of a strong social media policy.

Mr Crisp, who worked at an Apple store, posted derogatory comments on his Facebook page about his work and certain Apple products. One of Mr Crisp’s colleagues brought a number of these posts to the attention of Mr Crisp’s store leader. As a result Mr Crisp was suspended from his role and following a disciplinary process was dismissed for gross misconduct. Mr Crisp appealed this decision, but the original decision to dismiss was upheld. He then brought a claim of unfair dismissal. As part of its consideration the employment tribunal considered the fairness of the dismissal as well as whether Mr Crisp’s human rights had been breached, in particular his right to respect for private and family life and the right to freedom of expression.

The employment tribunal concluded that Mr Crisp’s dismissal was fair, and that there had been no breach of his human rights. In relation to the fairness of the dismissal the employment tribunal made particular reference to the training and policies on the use of social media provided to Mr Crisp by his employer, and the fact that employees were encouraged to ask if there was any doubt about their behaviour. The tribunal also concluded that there was no reasonable expectation of privacy over the Facebook posts because although Mr Crisp’s Facebook page was ‘private’, due to the nature of Facebook and the internet generally, posts by one person can very easily be forwarded on to others. As an Apple employee working with technology he should have been aware of this. As to the freedom of expression the tribunal found that this was engaged, but Apple’s conduct in limiting this right to protect its reputation was one of the justifications permitted by Article 9 of the Human Rights Act 1998.

This case is a typical example of the issues on social media which are increasingly relevant to employers. The rapid advancement in social media technology and the accompanying dramatic surge in its use have exposed businesses to new opportunities for customer and colleague engagement. However, as this case demonstrates, employees’ use of Facebook, LinkedIn and other social media sites can also expose employers to risks, including reputational damage, confidentiality breaches and loss of control over information. Bullying, harassment and discrimination can occur easily online. Defamation and negligent misstatement can create liability to third parties; privacy and data protection principles need to be considered and respected. How an employer prepares for and responds to these risks is crucial in determining how well it can protect its business from them.

The employment team at CMS Cameron McKenna has created a flyer to help employers understand the issues relating to the use of social media. Please click here to access the flyer.

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