Settlement Agreements and Facebook
Alleged misconduct involving an employee’s use of social media can pose difficulties for employers as it can be difficult to categorise the misconduct: for example, whether it consists of damaging the employer’s reputation, or breaching the employee’s duty of confidentiality. The employee may seek to argue that the conduct has taken place outside work, that it has no bearing on the employment relationship, and that the employer is infringing privacy rights.
In previous cases the Employment Tribunal (ET) held that an employee was fairly dismissed for making derogatory comments about customers on Facebook while at work, where the employer had a clearly drafted policy warning that employees might be disciplined for making derogatory comments in blogs about customers, staff or the organisation.
However, in another case it was held that even where employers have a policy regarding employee comments on social media sites, dismissal is likely to be unfair unless the employer can show actual damage, or the serious risk of potential harm, to the business.
A recent case has been presented to the Employment Tribunal; David Smith (employee) a canal worker from Scotland, has brought a claim for unfair dismissal against his employer, Scottish Canals, after he was dismissed for posting comments on his Facebook page.
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Employees should make sure they are aware of their employers’ social media policy. Employees also need to be mindful that when any social media disciplinary action is taken, if they are found to have committed gross misconduct they can be dismissed without notice. In these circumstances, employers will rarely use a settlement agreement to bring the employment relationship to an end.
If you have any concerns relating to the above, or would like further information relating to avoiding social media disciplinary action, please contact a member of the team.