Employees posting inappropriate social media messaging has implications for employers.
Recent examples of misjudged posts by celebrities have demonstrated the importance of thinking before you tweet, and highlighted the implications for organisations.
Last year, comedienne Roseanne Barr hit the headlines after she made a potentially offensive tweet in which she compared Barack Obama’s former aide Valerie Jarrett, who is African-American, to an ape.
The poorly-judged post led to her eponymous television sitcom being cancelled and caused shockwaves amongst the rest of the cast, crew and audience – with ABC’s Entertainment President Channing Dungey branding the comment “abhorrent, repugnant and inconsistent with our values”.
Danny Baker’s poor-taste tweet
More recently, Danny Baker has been dismissed from BBC 5Live after he tweeted an image of a couple holding hands with a chimpanzee dressed in clothes with the caption: “Royal Baby leaves hospital”. The 61-year-old Saturday morning show presenter was accused of mocking the duchess’s racial heritage.
This prompted the BBC to let him go, stating that the tweet “goes against the values we as a station aim to embody”. Baker, who initially apologised for his actions in another Twitter post, later seemed to retract this sentiment, calling the BBC’s decision “a masterclass of pompous faux-gravity”.
He said: ” took a tone that said I actually meant that ridiculous tweet and the BBC must uphold blah blah blah,” he added. “Literally threw me under the bus. Could hear the suits’ knees knocking.”
The social media headache
Although social media can be a fantastic tool for employers, it can pose a risk to an organisation’s confidential and proprietary information and cause reputational damage. Employers may also be held vicariously liable for the actions of their employees. This means that an employer is held responsible for acts of, for example, harassment committed by its employees. Aside from potentially jeopardising an employer’s image, the excessive use of social media at work can significantly lower employees’ productivity.
Dismissing an employee for social media misuse
We have seen a number of cases in the UK where employees have misused social media and their actions have constituted misconduct or even gross misconduct and provided their employer with a fair reason to dismiss.
The decision to dismiss will depend on the specific circumstances of each case, but you need to think about the answers to the following questions:
- What does your social media policy say? All employers should have a clear and robust policy in place to outline the appropriate use of social media. Employment Tribunals have made it clear that the policy must be carefully worded for an employer to be able to rely on its provisions. If it isn’t clear enough, or it’s considered that an employer’s response was not proportionate to the offence committed, an Employment Tribunal may find an employee’s dismissal unfair. If you don’t have a Social Media Policy in place, our Employment Law experts can draft one for you.
- How serious is the misconduct? Is it reasonable in all the circumstances to dismiss or to impose disciplinary action?
- What is the employee’s role and seniority? A senior employee, or one with a high profile, may be held to a higher standard than other colleagues.
- Has it impacted your organisation’s reputation? In these cases, you need to think about how many people saw the comments, whether people complain about them, whether there’s a sufficient work-related link, etc. Remember that if you’re alleging that it has damaged your reputation, you need actual proof of the damage that has been caused by the employee’s misconduct.
- What is the employee’s disciplinary record like? An employee with a clean disciplinary record will expect that to be taken into account as mitigation, although there will always be cases where the alleged misconduct is so serious that this no longer becomes relevant.
- Are there any mitigating factors? Anything an employee raises in his or her defence should be taken into account as mitigation (for example, strenuous personal circumstances at the relevant time) and it’s the Tribunal’s job to weigh all that up and decide whether or not the dismissal was within the range of reasonable responses.
- What sanctions have you imposed in other similar cases? If you decide to dismiss one employee and only give another a first written warning for the same offence, you must be able to justify this decision.
All employers should have a clear and robust social media policy. Employment Tribunals have made it clear that the policy must be carefully worded for an employer to be able to rely on its provisions.
James Tamm
Director of Legal Services
Expert comment
With all the controversy around Danny Baker’s tweet and subsequent sacking, it’s interesting to look at this purely from the perspective of unfair dismissal law. In the modern age, it’s fairly common for employees to land themselves in hot water due to their use of social media. Many employers have a social media policy and part of that will usually make clear the consequences for posting something the employer regards as inappropriate or that may damage its reputation. We can probably assume that an organisation the size of the BBC has a social media policy that contains such a provision. It would appear that the BBC believed Mr Baker had committed a potential act of misconduct under the terms of that policy.
When an employer discovers that an employee has committed an act of misconduct, it will normally need to carry out a reasonable investigation. In this case, the investigation into the act itself would be relatively short – the tweet was there for all to see. The employer is also required to have reasonable grounds for believing that the employee was guilty of that misconduct. Again, that doesn’t seem in doubt in this case.
Unfair dismissal
Instead, if this were an issue before the Tribunal, the focus would be on the final part of the legal test for unfair dismissal: whether, taking into account all relevant circumstances, dismissal was within the range of reasonable responses open to the employer. That is where many of the points listed above become relevant, including the seriousness of the conduct, the employee’s role/profile, their seniority, the impact on the employer’s reputation and any mitigation the employee may raise.
In this case, the conduct seemed potentially very serious. Despite Mr Baker’s apology, it’s easy to see why the picture he posted may have been regarded as racist. His profile is high, as is that of his employer, and no doubt the BBC would cite a danger of reputational damage if action were not taken. The mitigation here boils down to this being a mistake and a poorly-chosen picture that was intended to lampoon the royal family. Debate on social media seems to have polarised, with many people emphasising what they would have done had the decision about Mr Baker’s continuing employment been in their hands.
However, and this I suspect is often not fully understood by the wider public, such a substation of views is something the tribunal is specifically prohibited from doing in a case of unfair dismissal. The Tribunal’s only remit, as I have said above, is to decide whether dismissal was one of the potential reasonable responses open to the employer. Whether the Tribunal would have dismissed Mr Baker is irrelevant, as they are not permitted to substitute their own view on what should have happened. In that context, you can see how the bar is set relatively high for a claimant in an unfair dismissal case. However, it is important that employers investigate allegations of misconduct properly and follow the relevant procedures so as not to lower that bar for employees.
Social Media Dismissal Checklist
In line with your Social Media Policy?
Is the misconduct serious, therefore making it reasonable to dismiss?
Have you taken into account role and seniority?
What is their disciplinary record like?
Are there any mitigating factors?
In line with other sanctions from similar cases?
It’s always wise to seek legal advice before dismissing an employee. Your Employment Law Adviser can guide you through the correct procedure to follow to minimise the risk of unfair dismissal claims.
