US And UK Case Law Update

The law governing social media is rapidly evolving. Within the last year, the UK has seen a rise in reported cases from the employment tribunals, which have added to the growing body of case law and opinion on the subject of social media in the workplace, allowing employers to form a better understanding of what is and what is not acceptable for their employees. The overwhelming conclusion for many employers is that social media policies are not only useful, but are fundamentally important, if they are to defend employment claims. However, to be effective in practice, the policy must 'fit' the business and set appropriate standards to be complied with, in context. Recent U.S. case law on the subject is similarly focused on appropriate policies and training for employees. Given the variations in employee rights, employers dealing with these issues on both sides of the Atlantic may be interested in the U.S. approach and reaction to the cases considered below.

Most of the UK employment tribunal cases arise following employee terminations for emails, Facebook posts or comments, which are deemed by the employer to be offensive and acts of gross misconduct, leading to claims of unfair dismissal against the employer. UK employees with more than two years' service have the statutory right not to be unfairly dismissed. This right is governed by the Employment Rights Act 1996 (ERA), such that employers need to show that they have a potentially fair reason (from a prescribed list of five in the ERA), before dismissing any employee. In many cases gross misconduct is the reason relied upon, but the employer still needs to follow a fair and reasonable procedure, before dismissing the employee for that reason. Employment tribunals dealing with these cases must examine whether dismissal was within the range of reasonable responses available to a reasonable employer, in the circumstances, so the facts of each case, in context, are very important.

Claims in the employment tribunal may be coupled with complaints of discrimination, breach of contract and, more recently, breach of privacy, but the common theme in all these cases is the apparent lack of awareness on the part of employees when it comes to their online habits and the impact on others, including their employer and third parties, such as customers. A quick review of some of the cases (even a Google search) reveals the extent of this problem and the apparent differences in treatment shown by some...