Social media creates many opportunities for businesses to promote their activities and interests. Equally, it provides their employees with the opportunity to stumble into a great deal of hot water, causing upset to the people who have been targeted and also potentially costing them their livelihood. Given the international nature of business and the different jurisdictions in which businesses operate, it is important that those responsible are aware of the approaches taken in different jurisdictions.
In Denmark, a recent industrial arbitration tribunal had to decide whether an employer’s decision to summarily dismiss an employee for his LinkedIn post was justifiable. The decision was made in the light of the duty of loyalty which requires employees not to act in a manner that may be detrimental to an employer’s reputation or profits.
The post in question was written by an employee who indicated that he was seeking new career opportunities and challenges and outlined what his career preferences were. On the day of the post his employer, an insurance underwriter, called him into a meeting and dismissed him without notice on the basis that his actions constituted gross misconduct. They had formed that view because they had been contacted by customers about the post and interpreted it as being impliedly critical of the company and had reached a large number of stakeholders in the company.
The employee’s union argued that it was an over-reaction as there were no critical comments about the employer. The arbitral umpire agreed that the post did not contain any negative comments about the employer or his working conditions. Accordingly it was not a breach of the duty of loyalty, and whilst dismissal without notice was not justified, the umpire found that dismissal with notice would have been justified. In the light of this decision, it is clear that an employee’s conduct outside of work must take into account the nature of the employer’s business.
In the UK, the High Court in Smith v Trafford Housing Trust upheld an employee’s argument that his demotion and 40% pay reduction for posting on Facebook about his disapproval of gay marriage in church was a breach of contract. The Court did not agree with the employer that his moderately expressed views would damage its reputation.
At the other end of the scale, posts which bring the employer’s business into disrepute can reasonably be treated as misconduct and may be justified by dismissal depending upon the circumstances, what is said, the employee’s position within the company and the comments made. Posting comments, for example, which breach the employer’s anti-harassment policy or bring the employer into disrepute, may well justify summary dismissal.
Prudent employers should ensure that they have policies on the use of social media, and that misuse of social media / breach of social media policies is expressly referred to in the disciplinary policy so that employees understand what is and is not permissible, and the likely consequences for infringing those policies.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.