Social Media: the rights of employees to post on personal social media accounts

The US singer-songwriter Katy Perry has become the first person to reach 100m followers on Twitter.

This statement is emblematic of the rise of social media and its pervasiveness in our everyday lives. In the context of the employment relationship, and in the absence of a clear social media policy for employees, the law is not black and white but different shades of grey as emphasised by the following 2 decisions:

  • Crisp v Apple Retail (UK) Ltd ET/1500258/11 In this case, one of the world’s most prominent consumer technology companies, Apple, used its policies and procedures to dismiss fairly an employee who had made several Facebook posts that it considered could damage its reputation.
  • Whitham v Club 24 Ltd t/a Ventura ET/1810462/10 In this case Mrs Whitham was dismissed for making offensive comments about her colleagues on Facebook. Her employer considered that the comments put its reputation at risk and could have damaged its relationship with a key client. An employment tribunal decided, however, that the dismissal was unfair

In Northern Ireland one of the leading cases regarding social media is the case of McCrossan –v- DSD 00062/15FET & 02328/15IT (in which MTB acted for the employee). In this case the tribunal determined that Ms McCrossan “suffered unlawful discrimination on the ground of political opinion”.  The following sections of the decision are particularly important:

“This leaves employees in an invidious position where they seek to express political opinions on social media in their own time and it is clear that the application of the policy in this way could have a “chilling effect” on free speech”.

“ . . . in a case where freedom of expression appears to be engaged and an employee is disciplined for expressing a political opinion in his or her free time, we should scrutinise very carefully the circumstances surrounding the disciplining of the employee in the context of the importance of this right in a democratic society”.

Conclusion:

It is extremely important for employers to have a clear social media policy so that both employers and employees know where they stand should guidelines not be adhered to. Such guidelines should ideally be documented, as well as presented formally in induction training, and should include a breakdown of the policy on each social medium.

Should you require further advice in respect to any of the contents of this article please contact Mr. John McShane or Ms Judy Hamilton for further assistance.