We carried out a “Social Media in the Workplace” survey in 2016 and found that 66% of employers encourage business-related posting by employees on personal pages. 

It is clear that social media is fast becoming entrenched in everyday workplace life. It is therefore extremely important for employers to keep aware of the growing trends in social media use, and keeping up to date and clear policies on what will be acceptable and unacceptable social media behaviour when related to work and the workplace.

The question of whether you can dismiss an employee for social media misconduct is an interesting one, and was considered in the case of Burns (“B”) v Surrey County Council (“SCC”) 2301665/2016. What were the circumstances, and how did the tribunal consider this issue? 

Facts

B started working for SCC in 1995 as a Care Assistant and gradually progressed to Team Manager and Registered Manager of a residential care home for elderly and vulnerable adults. As part of this role, B had overall responsibility for the well-being and safety of all residents and staff and ensuring that clinical standards were met. In addition, B would attend the home on Friday evenings to participate in a regular music event for the residents. 

On 15 December 2015, B’s line manager was shown B’s Facebook page by a colleague where pictures and videos had been published. Four breaches of SCC’s policies on privacy and social media use were identified as a result, including identifying a resident in a photograph, posting a video of the music event which identified residents, and becoming “friends” with a relative of one of the residents. 

As the Registered Manager of the home, B would have been, or should have been, familiar with these policies. B was called to head office and suspended. During her suspension an investigation report was produced that recommended a disciplinary hearing be convened. At the meeting, the disciplinary manager upheld all four allegations and indicated that the usual penalty would be dismissal, but due to B’s mitigation a final written warning would be issued with the offer of continuing employment but as a demotion with a significant pay cut. 

B appealed but this was refused. SCC then gave her two days to decide whether she would accept demotion or face dismissal. When B asked for extra time, this was refused. By this time B had been signed off with stress and anxiety, and received a demand from SCC that she decide immediately, and that if she did not accept the demotion she would be dismissed with immediate effect. 

The next day, B received a letter stating that she had “decided to accept dismissal”. 

B claimed unfair dismissal and disability discrimination in the employment tribunal (ET). While B’s discrimination claim was dismissed, the ET concluded that B had been unfairly dismissed. Due to the fact that B had admitted the breaches against her, the ET ruled that it was clear that SCC had a genuine belief of her misconduct, and that they had reasonable grounds for that belief and that no investigation was required into the issue of culpability. 

However, SCC did still have a duty to follow a fair procedure and investigate properly any matters that went to mitigation, and therefore appropriateness of penalty. The ET did find that B’s dismissal was procedurally unfair on the basis that the timescale imposed on B to make a decision about redeployment or dismissal was insufficient. 

Practical considerations with social media in the workplace

If an employee has breached a social media or privacy policy and this constitutes misconduct, employers need to keep in mind that it should act reasonably if they are to treat the reason for dismissal as sufficient in the circumstances. There has to be a genuine belief in the misconduct and a reasonable investigation into the circumstances before any decision on dismissal can be made. 

It is normally best practice to recommend to employees that no customers or colleagues are kept as “friends” on social media, save for professional social media sites such as LinkedIn and that personal profiles make no mention of the employer or its business and clients. 

Furthermore, if an employee does breach any social media rules or codes an employer has in place, it is vital that the procedure relating to subsequent suspension and/or disciplinary hearings is carried out fairly, appropriately and reasonably, with no onerous timescales or terms imposed on employees such as in the Burns case, and full consideration of any and all mitigating circumstances are taken into account. Consistency is key.


This article was written with assistance from Becky Minear, Trainee Solicitor