In the past ten years there has been a veritable explosion in the use of social media by individuals and businesses. Services such as Facebook, Linked In and Twitter have allowed interaction on a hitherto unforeseen scale and have allowed for the opening up of new business opportunities, outlets for marketing and opportunities to network (both socially and professionally). However, although – when used properly – these services can be beneficial to business, improper or misguided use of such online services can have dire implications for relations between employees, employers and third parties. An innocent post on Facebook can lead to disciplinary action, a benign ‘Tweet’ on Twitter to potentially being sued, or ticking the ‘wrong’ box on Linked In to being dismissed (as in this case reported in the Telegraph last week). Further, if an employee discloses or misuses confidential information or intellectual property then this can result in breach of the employment contract, breach of a confidentiality agreement between the employer and a third party, detriment to the employer, and/or potentially breach the criminal law by disclosing non-public information. As can be seen, improper use of social media can potentially lead to the termination of your contract of employment and in extremely serious cases to prosecution.
Depending on the type of misuse, as above, the consequences range from disciplinary to dismissal to potential prosecution.
If you are being (or have been) disciplined or dismissed for misconduct in your use of social media then it is important that your employer conducts the disciplinary process fairly (see this post for information on what you should look out for). In short, the process should allow you to put your side of the case regarding your use of social media, you should be provided with any written evidence against you, and (as well as a number of other issues considered in the above post) the decision to dismiss you (if it goes that far) should be within the range of reasonable responses in the circumstances. An important issue to get information on in issues such as these is whether your treatment is consistent with how other employees have been treated in the past in comparable incidents.
Further, if you are deemed by your employer to have harassed or bullied other employees through your use of social media (and that harassment or bullying relates to a protected characteristic) then there is the potential for you to be joined as a Respondent in an Employment Tribunal case. This is almost certain to be a harrowing (and potentially expensive) process. Depending on the gravity of the bullying or harassment there is even the potential for you to be joined as a Part 20 Defendant in a claim for personal injury should the victim have sustained psychological harm as a result of your conduct.
Should your misconduct relate to a breach of confidentiality or of intellectual property then (again, depending on the gravity of the breach) this may result in a breach of your employment contract and potentially a breach of any confidentiality agreement between your employer and a third party. Such a breach may lead to the termination of your contract of employment (dismissal) and may lead to your being sued by your employer or the third party for breach of contract and any losses flowing from such a breach.
Such a breach, as outlined above, may also lead to criminal prosecution should you (for example) divulge non-public information that leads to the creation of a false or misleading impressions of the market for a company.
As the tenor of this post makes clear, it is in your best interests as an employee to be extremely careful about social media use both within and without an employment context. Tighten up your privacy on Facebook, be careful about what you put on Linked In, and don’t post anything that could be misconstrued on Twitter (Diane Abbott-style). And don’t, for heaven’s sake (and this shouldn’t really need stating anyway), bully or harass other employees. Finally, check your contract of employment, staff handbook and (if relevant) restrictive covenants to check what may or may not amount to misconduct or a breach of contract.
If you have been dismissed for (gross or otherwise) misconduct for your use of social media, have been discriminated against by other employees through their use of social media, or are being sued (or think you may be sued) for breach of confidentiality then get in touch with us for some free, no-obligations advice.