A rising tide of social media legal cases has provided guidance, but not certainty for both workers and employers, according to a legal expert.
Lisa Berton, a Partner in Kemp Strang’s Employment Law practice, says several cases in recent months have dealt with social media in the workplace, however the definition of acceptable conduct is still blurred.
“Employers and staff have heard a lot about social media this year, without knowing exactly where the line is drawn concerning their legal rights and obligations.”
Ms Berton uses two recent cases to illustrate the grey areas that still surround employment law and social media.
In the first, a worker posted a blog on her MySpace page criticising her employer, and then refused to remove it. The court found that the dismissal was not unreasonable as the blog was an attack on management, bringing the organisation into disrepute.
The court noted that even if comments are posted outside work hours and using the employee’s personal IT resources, if they directly breach an express term in an employment contract, then they could still lead to a dismissal.
In the second case, a worker was compensated for being unfairly dismissed after posting insulting comments about her employer on Facebook. In this instance, it was found that the post hadn’t damaged the business, so fell short of being a valid ground for dismissal.
“It’s clear from these cases that courts are going to look very carefully at individual circumstances before making a decision. With the evolving nature of social media, there isn’t going to be one blanket decision that covers all the issues at once – so it’s important for employers to be on top of their game when it comes to their own social media policies and practices.”
According to Ms Berton, social media has also expanded the scope of potential avenues for defamatory comments.
“It is becoming more common for employees to express displeasure about their employers or co-workers on Facebook, Twitter or other social networking sites. But what seems to be a natural ‘vent’ for employees is presenting headaches for employers.”
“We’re starting to see unfair dismissal claims brought against employers who have dismissed an employee on the grounds of a social networking ‘indiscretion’. But these cases certainly do not justify trigger-happy employers – the courts are still navigating the way such cases are to be handled with a clear regard to existing principles. There is still no certainty that dismissal is always an acceptable course of action for social media employee incidents.”
Given the lack of clarity, Ms Berton suggests that employers be proactive in helping employees understand their obligations regarding social media in the workplace.
“Communication is vital – you can’t expect employees to follow a policy that they don’t know exists, or don’t understand,” said Ms Berton.
