Can you dismiss an employee for the comments they write on social media?

Employee use of social media

Laytons ETL | Employee use of social media

As social media has become an integral part of our daily lives we wanted to take a look at how employee’s use of social media can impact on the employment relationship.

Can you dismiss an employee for the comments they write on social media?

Here are some examples of cases where employers have taken disciplinary action regarding an employee’s comments on social media about their employer.

Crisp vs Apple Retail (UK) Limited Mr Crisp made a number of comments relating to his employer on his facebook page. When these were shared with Apple Retail he was invited to a disciplinary. At the meeting Mr Crisp relied on the fact that his facebook page was private, therefore only his ‘friends’ would have access to the comments. He further claimed that he had not brought the company into disrepute as the comments did not directly allude to working for Apple Retail. However he was dismissed on the basis that the comments had attacked Apple’s core value of protecting its’ image - and the company’s social media policy had made clear the serious view taken of derogatory comments being made about the company through online media. Mr Crisp made a claim in the Employment Tribunal for unfair dismissal.

The Employment Tribunal found that Mr Crisp had been fairly dismissed and took the following into account: 1. The Facebook posts were not truly private and could have been forwarded on very easily 2. Although Mr Crisp did not state on Facebook that he worked at Apple, his friends would have known this, as was shown by some of their comments in response to his post 3. The Company Social Media policy and training for employees made clear the importance of the company’s image 2 | laytons.com

This case demonstrates that where an employer is concerned about damage to its' reputation through the use of social media, its’ policy on social media must make it clear that a serious view will be taken about damaging comments made about the employer in social media.

M Austin vs A1M Retro Classics Limited In 2020 employee Mr Austin was employed by Retro Classics Limited as a paint sprayer. His employer criticised the standard of his work and shouted at him. That evening Mr Austin wrote on Facebook “I don’t think I’m a bad person but I don’t think I have ever felt so low in my life after my boss’s comments today.” His friends tried to reassure him and in doing so made comments about his employer, some of which were homophobic. A few days later the employee was called into a disciplinary without warning (or the right to be accompanied) and then dismissed by telephone the next day.

Mr Austin successfully claimed unfair dismissal as there had been no proper investigation into the allegations or prior warning of the disciplinary. The employer had a social media policy which stated that employees should ‘not make comments which would ruin the reputation of the organisaton’ however the employer did not investigate whether the employee’s comments on Facebook identified his occupation or place of work. Neither did it check the privacy settings of the post. The employee was also not given details of the allegations in advance of the disciplinary.

Laytons ETL | Employee use of social media

This case highlights the importance of: a. Having a clear policy on the use of social media b. Conducting a thorough investigation into allegations - has the employer been named in social media posts? What are the privacy settings on an employee’s private account? c. Conducting a fair disciplinary process in line with company policy: o Allegations should be issued to the employee in writing o Employees should be given 2/3 days notice of a disciplinary meeting o Employees should have the right to be accompanied at the meeting o Disciplinary action must be 'fair and reasonable in all the circumstances’ If your organisation does not have a Social media policy please get in touch.

Can you prevent an employee from taking company linked-in contacts when they leave?

Whitmar Publications vs Gamage Mr Gamage was employed as a Sales Manager. He resigned from his employment along with two other employees, having a registered a new company called Earth Island, a few months earlier. Mr Gamage and his former colleagues had attempted to use the LinkedIn groups maintained by Whitmar Publications, their former employer, to further their new business. They had misappropriated and misused confidential information in particular by removing 450 business cards and databases from their former employer. After leaving, the exemployees refused to disclose the LinkedIn access details to the company so Whitman Publications did not have access to its own pages. One of the former employees used client contact details to invite Whitmar clients to a drinks event with the new business venture.

Whitmar Publications sought interim relief to bring an injunction to restrain the use of confidential information and inspect Mr Gamage and his colleagues’ computer systems. They submitted a claim to the High Court that their former employees were in breach of their contracts of employment and their implied duty of good faith and fidelity. Their contracts of employment did not restrict them from competing with Whitmar Publications after their employment finished. However the former employees had been taking steps to compete against the company for over a year in secret and as such Whitman Publication were granted injunctive relief as their customer database provided the former employees with a competitive advantage.

The injunctions forced the former employees to facilitate the access, management and control of the company’s LinkedIn pages and restrained them from doing anything to stop the company accessing the pages. The employees were also prohibited from entering into contractual arrangements with any of the 450 clients named on the business cards they removed.

Whilst this case provides assurance to employers that company LinkedIn pages belong to the employer, it does not cover employee’s personal LinkedIn accounts where they may be connected to clients of their employer. Employers should ensure their contracts of employment include enforceable posttermination restrictions including non-solicitation and non-dealing with their former employer’s clients.

Social media policies should also cover the ownership of business contacts made during the course of employment.

If you would like us to review your contracts of employment to ensure that the restrictive covenants are fit for purpose please get in touch.

Susie Kaye

Consultant susie.kaye@laytons.com +44 (0)20 7842 8000

laytons.com | 3

Our Sectors • Technology, Communications & Digital Media • Construction, Land & Planning • Personal Affairs, Private Wealth & Philanthropy • Retail & Hospitality

Our Expertise • • • • • • • • • • • • • •

Arbitration Banking & Finance Charities Commercial & Corporate Data Protection & Information Disputes Employment Family & Matrimonial Immigration Insolvency & Restructuring IP & Technology Real Estate Tax Trusts, Estates & Private Client

Pinners Hall,105-108 Old Broad Street, London EC2N 1ER +44 (0)20 7842 8000 | london@laytons.com laytons.com

© Laytons LLP which is authorised and regulated by the Solicitors Regulation Authority (SRA Nº 566807). A list of members is available for inspection at the above offices.