A Controversial LinkedIn Post Demonstrates Why Your Business Needs a Social Media Policy
Social media can be a fantastic tool for companies, but it can also present a risk.
The bad publicity associated with a post by an ill-informed or wayward employee can have a hugely negative impact on a company’s brand.
Samantha Cotter is a senior associate at Derby law firm Knights. In this post, she’ll explore the ways businesses can protect themselves against their employees’ inappropriate behaviour online.
In the last few days I saw a post pop up on my LinkedIn feed.
An employee of a very well-known train operator posted what you can only assume he thought was an entertaining story about an interaction with a member of the public:
Now being the daughter of a railway enthusiast I often get corrected when I say “train station” rather than “railway station”. However, the above post was widely considered to be inappropriate, rude, and not behaviour fit for someone who worked for one of the major rail operators.
At the last count there were 145 comments underneath this post, most of which were reacting negatively to the post. Some even copied in the managing director and HR Director of the rail operator.
The post has since been deleted. While it is entirely conjecture, it seems likely that the employee will be disciplined for the post. But is that a reasonable reaction? What can an employer do in this situation? And arguably more importantly, what can they do to prevent this from happening?
1) Have A Social Media Policy
Having a clear social media policy is a great starting point, but you also need to make sure that it has been communicated to staff.
The tribunal will take into account not only that you have a policy that covers the type of misconduct alleged, but also that the policy was drawn to the attention of staff. The most appropriate time to do this is at induction, or whenever the policy is amended.
Policies can prohibit posts that might embarrass the company, harm its reputation or undermine its culture. Such policies have helped employers successfully defend tribunal claims that staff were unfairly dismissed as a result of a post on social media.
2) Offer Social Media Training
Social media training can show your employees how to maximise the potential benefits of social media. But the training can also cover the company policy regarding what is appropriate content, and the possible repercussions in the event that the policy is breached.
While people are becoming more aware of how difficult it is to restrict who sees what you post on social media, it is still worth including a reminder in your training. A further consideration is brand protection. It is recommended that employees receive training and guidance on the construction and acceptable use of any social media sites they are using for business purposes.
3) Consider the Context
Was the post on a personal or business account? Is it obvious from their profile where they work?
Both will be important factors when deciding on what action to take if an employee is in breach of a social media policy. A tribunal in an unfair dismissal case will look at whether there is likely to be a detrimental impact on the company.
In the above example it was a post on LinkedIn, a business site, where the employer was specifically named. It is clear that the negative reaction to the post will have been associated with the employer.
4) Consider What Has Been Posted
Is it a post in their name? Have they commented on another post, or have they liked something inappropriate?
All are important factors. In one case, an employee who liked a post about his manager being hit with a chair was dismissed, but that was going a step too far according to a tribunal who decided that the dismissal was unfair. They also took into account the fact he had used a personal account and had an exemplary disciplinary record up to that point.
Again, looking at the above example, the post directly relates to a potential customer of the company. The reaction of the member of staff is certainly not what a reasonable employer would have expected from a member of staff in this situation. You can only hope that he was not wearing anything that identified him as working for the operator at the time of the incident.
So, is it Serious Enough to Warrant a Dismissal?
Cases where the tribunal have decided that a dismissal due to something posted in social media was fair include:
– Comments including ‘I hate my work’, ‘it’s not the work, it’s the people who ruin it, horrible nasty human beings’ and ‘Why are the gaffers such ******, is there some kind of book teaching them to be ********’. In addition, comments which suggested the employee was under the influence of alcohol while on standby. The company’s social media policy, combined with the seriousness of the comments, and the fact a fair process was followed, resulted in a decision that the dismissal was fair.
– Comments made by the employee about their employer and the company products that were less than complimentary resulted in their dismissal. The tribunal decided that the dismissal was fair on the basis that the comments had harmed the company’s reputation. They also took into account the fact that the employee had received training on what was appropriate use of social media.
– Posting comments which were critical of the employer was found to be a fair dismissal, even though the employer was not named. The comments had damaged the relationship between the employee and employer, had damaged the employer’s interests and had the potential to damage the employer’s relationship with other employees.
– An employee who did not name her employer on her profile was still found to warrant dismissal as anyone who knew her would know where she worked. Therefore the comments still had the potential to harm the employer’s interests.
What Will Employment Tribunals Consider?
An employment tribunal when called upon to determine whether a dismissal related to a post on social media is fair will consider:
– the nature of the comments made;
– how quickly after the post the employer acted and reasons for any delay;
– whether there is a social media policy in place;
– what training was provided to the employees regarding the policy;
– whether the comments were made within working hours;
– the subject matter of the post or comment;
– the extent of the damage caused to the employer’s reputation;
– whether there has been any breach of confidentiality;
– any mitigating factors that may exist, such as a history of good behaviour or a mental health condition that may have affected their ability to gauge what was appropriate.
In a case where there is a clear link to the type of work the employee (or company) does, that there is an obvious identification of their place of work, and where the post is likely to have caused reputational damage to the employer, it seems likely that making the decision to dismiss, should that be the outcome, would potentially be a fair one.
Of course it is important to consider whether there is a social media policy in place, whether the member of staff has received training, and of course whether a fair process was followed when reaching the decision to dismiss.
And For Employees?
Think before you post the next thing that comes into your head. Stop and think what the outside world may think. As funny as you may consider the comment to be, consider the potential impact.
If it is truly harmless, entertaining, or even likely to be beneficial to your work, then go for it. If it is in bad taste, mocks others, or might undermine your employer’s brand, think twice before hitting post.
If you would like to discuss any aspects raised in this article, please contact Samantha Cotter, a Senior Associate in the Knights Employment Team based in Derby on email@example.com; or any member of Knights’ Employment Team firstname.lastname@example.org.
If you need help educating your staff on good social media use, get in touch with Status Social for a free consultation.
Samantha Cotter Asoc CIPD
Samantha joined Knights Professional Services Limited in January 2016 as an Associate in the Employment team, and became a Senior Associate in October 2016.
Her work includes drafting employment contracts, putting in place and advising on policies and procedures, advising on Settlement Agreements, HR advice, dispute resolution and representation at Employment Tribunals. she also has experience in dealing with employment related litigation matters in the County and High Courts.